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r
o
>MPLETE COLLEOTION
OF
' • «
State
AKD \
^GS FOR HIGH TREASON AND OTHER
CRIMES AND MISDEMEANORS
FSOM THB
VRLIEST PERIOD TO THE PRESENT TIME,
J^OTES AKD OTHER ILLUSTBATIOJ^S
COMPILED BY
B. HOWELL, Esq. F.R.S. F.S.A.
VOL. XVII.
A.D. 1726—1743.
LONDON:
rTEI> BY T. C. HANSARD, PETERBOROUGH-COURT, FLEET-STREET s
MAM. H VBST, REE8, ORME, & BROWN; J. RICHARDSON; BLACK,
V, 8c CO.; E. JEFFERY; J. HATCHARD ; E. LLOYD; E. BUDD ;
J1.I>ER ; J- BOOKER ; CRADOCK & JOY ; R. U. EVANS ; J. BOOTH ;
r. C- HANSARD.
1813.
<f
• • •
• ••• «.«
• • . • • •
• ■ • • •
• • • • • •
• • • * a ■ • '
* • • •
^.^A
TABLE OF CONTENTS
TO
VOLUME XVII.
*0* The new Artidei are marked [N.]
REIGN OF KING GEORGE THE FIRST.
Page
407. The Itial of JOHN GRAHAM, ALEXANDER CRAW.
FOORD, and WILLIAM HOGG, for drinkiDg the Pretender't
Healtby a«d. 1715. Now first printed from the Records of Jus*
tidaiy at Edinbwi^ [N.] 1
46B. Hie TMal of Mm^ JOHN ONEBY, at thm Seselons-House in the
Old-Bailqr, lor the Murder of Wm. Gower, esq. a. d. 1726 90
*
REIGN OF KING GEORGE THE SECOND.
469. The Trial of JAMES CARNEGIE, of Finhaven, before the Courif
of Justiciary (in Scotland), held at Edinburgh, July 25, for the
Murder of Charles Earl of Strathmore, a. p. 1728 ..rb 74
470. The Case of EDMUND CURL, Bookseller, in the King's-Bench,
for publishing a Libel, a. p. 1727 • •••• .^t. ...••• 154
471. The Trial of WILLIAM HALES, for forging a Promissory Note
for G,40tf. in the Name of Thomas Gibson, esq. and Partners,
and for poblishmg the same as a true one, knowing it to be false
and counterfeit, a. d. 1728 162
472. The Trial of Mr. WILLIAM HALES, at the Scssions-House in
the Old-Bailey, for Misdemeanors, in forging several Notes and
lodoraementt in the Name of Samuel Edwards, esq. and publish-
ing the aamey knowing them to be forged, a. p. 1729 210
TABLE OP CONIXMTS.
Page
The Trial itf WILLIAM ACTOK, Deputy-Keeper ml H««d
Timikty of the Manhalset Prken m Southwark, for the Murder
of ThoiDis Blitty late a Pirisoiier in the said Prison, at the Asrizes
held at Kingston-upon-Thames, for the County of Surrey, Aug.
1, A.D.I7S9 469
B The Trial of WILLIAM ACTON, for the Murder of John Brbm-
fiekl, at King8ton*upon-Tliames, in Surrey, August 2, a. d. 1729 511
I
H. The Trial of WILLIAM ACTON, for the Murder of Robert New-
ton, at the Assizes h'dd atKbgatcm-upon-Thames, for the County
of Surrey, Augusts, a.d. 1729 • 506
BS. The Trial of WILLIAM ACTON, for the Murder of James
Thompson, at the Assizes held at Kingston-upon-Thames^ in
Surrey, August 2, a. d. 1729. .•••... 546
ft %?eral IVoeeedingcr relaiidg to the baiHng Mr. B AMBRID6E, both
at the King's-Beneh, and at the Sessions-House, in the Old-Bailey,
previous to his Trial for Felony, a.d. 1729 •••.••• 563
IS7. The Trial of THOMAS BAMBRIDGE, esq. for Felony, a. d.
1729 582
Ke. Minutes of the Proceedings of the Committee, appointed to enquire
into the State of the Gaols of this Kingdom, touching a Charge
against Sir ROBERT EYRE, knt. Lord Chief Justice of his
Majesty's Court of Common Pleas, for personally visiting Thomas
Bambridge, late Warden of the Fleet, whilst he was a Prisoner in
Newgate, under a Commitment of the House of Commons, &c. &c.
A.D. 1730 619
Ml The Trial of Mr. RICHARD FRANKLIN, for printing and pub-
lishing ** A Letter from the Hague,'* in the Country Journal, or
CrafUman, of Saturday, the 2d of January, 1731, at the Sittings
of the Court of King's«Bench, at Westminster, on Friday, Dec 3,
A.D. 1731 620
ft The Trial of Mr. JOHN PETER ZENGER, of New- York, Printer,
ior printing and publishing a Libel against the Government, at
New-York, on August ^ih^ a. d. 1735 675
TABLE OF CONTENTS.
Page
491. The Trial of JOHN OUPHANT and others, for drinldng to the
Health of the Pretender, and curring the King, a.d« 1715. [Now
first published from the lUcordsofJustidary at Edinburgh.] [N.] 763
499. The Trial of Mr. GEORGE ROBERTSON, Minister, for neglect-
iDg to pray for the King, a. d. 1715. [Now first published from
the Records of Justiciary at Edinburgh.] [N.] 788
493. The Trial of ALEXANDER STEWART, for maintaining the Title
of the Pretender, a. n. 1715. [Now first published from the Re-
cords of Justiciary at Edinburgh.] [N] 791
494. The Trial of JAMES GEDDES and JOHN CRAWFOORD ( Ser-
vants of Lord Southesk,) for drinking the Health of the P^tender,
and cursmg the King, a. d. 1715. [Now first published from the
Records of Justidary at Edinburgh.] [N.] 799
493. Case of the KING against GIBBON, a^ d. 17S4. Upon an Infor*
mation, in the Nature of a Quo Warranto, by the King^s Coro-
ner and Attorney, against the Defendant, to shew by what Autho-
rity he claimed to be a Freeman of the Town and Port of New-
Romney, at the Rehitk>n of William Jarvis. Triedat Kqnt Assizes,
held at Maidstone, the 6th of August, 1734 802
4%. Case of the KING against RICHARD ELLES, a. d. 1734. Upon
an Information, in the Nature of a Quo WarrantOi by the
King's Coroner and Attorney, against the Defendant, to shew by
what Authority he claims to be Mayor of the Town and Port of
New-Romney, at the Relation of Benjamm Man. Tried at Kent
Assises, held at Maidstone, the 6th of August, 1734 822
i97. Case of HENRY MOORE, Plaindfl; against the Mayor, Jurats, and
Commonalty of the Town and Port of Hastings, in the County of
Sussex, Defendants, a. d. 1736 846
498. Pk-oceedings in the Trial of Captain JOHN PORTEOUS, for Mur-
der, A. D. 1736 923
499. The Trial of WILLIAM MACLAUCHLAN, for Mobbing, Mur-
der and other Crimet, a. d. 17S7. [Mac Lourin's Aigunents
and DecuHMH.] [N.] » PM
TABLE OF CONTENia
Page
aOO. The Triak of SAMUEL GOODERE, esq. MATTHEW MA-
HONY, and CHARLES WHITE, for the Murder of Sir John
Dineley Goodere» bart (Brother to the said Samuel Goodere) on
Board his Majesty's Ship the Ruby, a. d. 1741 1003
MI. The Trial of QHARLES WHITE, for the Murder of Sir John
Goodeie, a.d. i74fl.« , 1079
JOS. The Trial of JAMES ANNESLET and JOSEPH REDDING,
at the Sesttoos-House, in the Old-Bailey, for the Murder of
Tbomas Egglestone, a. n. 1742 ••••••••• 1094
m. The Trial in Ejectment between CAMPBELL CRAIG, Lessee of
JAMES ANNESLET, esq. and others, Plaintiff; and the Right
Hon. RICHARD Earlof ANGLESEA, Defendant, a. i>. I74S 11S0
*
\
ADVERTISEMENT.
Mr. Cohbett having disposed of his IfUerest m this Woik,
the future Volumes will be published under the TUle prefixei b
this Volume ; and new Titles will be furnished for the first lb
Volumes.
*ii* CommunicatioDB for the Work will be received b}' the Printer.
Lately published, by the same Proprietors^
The Thirteenth Volume of
THE PARLIAMENTARY HISTORY OP ENGLAND,
From the Earliest Period down to the Year 1803.
[Vol. XIV. will be published in February.']
Also,
THE PARLIAMENTARY DEBATES,
From the Year 1803 to the present Time.
The Twenty-first, Twentt-second, and Twenty-third Voluiiiet cf the
Work, comprising the Debates in both Houses of Parliament during the Sesuon
1812, are ready for delivery.
*4,t* Subscribers who may not have completed their Sets are requested to make
immediate application for the Volumes wanted.
A COMPLETE COLLECTION
OF
STATE TRIALS,
467. The Trial of John Graham, Alkxandku Crawfoohd, and
William Hoog, for drinking the Pretender's Health:
1 George L a. d. 1715. [Now first printed from the Re-
cords of Justiciary at Edinburgh.]
Cnu JomcfARiA^ S. D. N. Res^, tenta in
Pneiorio Burgi de EfliDbargb, trigesimo
primo die mcnsis JaDuarij miiJesimo sep-
tinjfeotesiroo decimo qniDto, Per Hono-
nbites «iro8, Adam Cockburne of Ormia-
Umn Justiciariuro Clericum, Dominoa
GUbertum £liot de Minto, Jacobam Mac-
kenzie de RoyitouQ et Gulielinuro Calder-
wood de PoUoiin, Magistros Jacobum
HamihoD de Pancaitland et Davidem
Efikiiie de Duo, Commissionarios Justi-
ciirij diet. 8. D. N. Regis.
Curia legittime afHrmata.
IntraiC John Graham, youDgfer, of ^ew-
^^n: Alexander Crawfoord^ younger, of Man-
niulmiln; and Mr. William Il^gg, desiu^ned
kr^ of Edinburgh, professor of pUilosophy .
iVDICTED and accused at the instance of sir
Pivid Dalrynnple of Hailes, baronet, his ma-
jf^'y's advocate for his majesty's interest, for
Jniikiojjr the Pretender's health, in manner
mentioned in the criminal tetters raised against
'h^ thereaoent. Makeing mention, that
*j»*Te, by the laws of ScoUaml made before the
^ Dion, particularly, the 4th act of the first
*J*«»oo of her late majestic queen Anne of
i'-'cfted memory, her first parliament, intituled,
Act airaiost I>easiog Makers and Slanderers,
»3'i Che acts therein recited. And by the laws
*>f ill well goTemed nations, leasing makeing,
^ the uttering of sUndrous speeches, tending
^ excite sedition, and alienat the affection of
^ people from his majesty's person and go-
vnnmeot, or to sett up and encourage the false
^ icandalons pretensions of any person to the
p^Jiidice of hift majesty, his estate, and his
JQX lod law full title to the crown of these
'(•Ims, stirring up thereby his subjects to mis-
IiluiHrB, sedition, unquietness, and to cast off
^rdoe cibedieace to bij majestie, to their evi-
VOL XVII.
dent peril, tinsell and deftructioti, are crimes of
a high nature and severely punishable. And
more especially, whereas by an act of the par-
liament of Great Britain, made in the sixth year
of the reign of her said late majestie queen
Anne, intituled, Av Act for the Security of her
majesty's person and goveniment, and of the
Snooession to the crown of Britain in the Pro-
testant line; It is amongst other things en-
acted, That if any person or persons shall mali-
ciously and directly, by preaching, teaching, or
advysed speaking, declare maintain and afnrm,
that the pretended prince of Wales, who now
stiles himself king of Great Britain or king
of England by the name of James tlie
third, or king of Scotland by the name
of James the eight, has any right or title
to the crown of these realms, every such
person or persons shall incurr the danger and
penalty of Premunire made in England, in the
16th year of the reigne of Richard the second.
Yet nevertheless it was of verity, that the saids
John Grahamc, Alexander Crawfurd and Mr.
William Hogg, and each of them were guilty
actors art and part of the foresaid crimes, in so
far as, upon the 15th or 16th days of the moocth
of December last 1714 years, a stoup with ale
in i^ or some other liquor, being bront(lit to
the street of Edinburgh, near to the Tron
church and to the main guard, by a woman to
them, and a cup filled up and delivered to the
said John Grahame, he proposed the king's
health, and one having aslced what king? the
said Alexander Crawfurd cried out, Ring James
the eight; whereupon the said John Grahame
drank to the healili of king James the eight,
and the cup being filled np again twice to the
said Alexander Crawfurd and Mr. William
Hogg, each of them did likewise drink and
spoke these words, To the health of king James
the right, and not contontetl with their thus
direct open affirming of tha pretooded and
Aleiander Cnwlurd nd Mr. William Hagi(i
did drink tu Ihe bappy mioration of (he uld
Pretender, under the DBine of kitiK Jamea the
eight ; which words, Tn llie health of kln^
James the ei^ht, aai to the happy-reituratioD
of kinti Jamea the eight, orwonls to that effect,
thev and each of them did pranoonee allaad,
and huzza'd at each health, daDcin^attheaame
time, and haTiog hautboyi playiDE te them
in deniongtratioD of Iheir Joy and afiectioD to
what they were doing, la open deBaoce and
GODlempt of the lawi generally and particu-
larly aboTe mentioned, and they were seized in
the Tery act, or iocontineDt thereafter beinff
pnnued by Ihe city guard*, and the atoup and
cup found iu the place to which they had fled,
■nd wherelhey were taken, and the aaida John
Gnham, Alexander Crawfnrd, and Mr. WUHam
Hogg were immediately thereafter brought
priaonera into the guard, £^v all which, they
and each of them, were guilty aclora art and
part of the breach of the aaid Mwi, which, ur
Trial qfJohn Graham and others,
Iktoilvation for his Majeity't Advoc
highoeHS interest,
*«raict 01 an aBiae, oerois idb wrua jiuuc*
j^SDcral, jutice okrk ud oommiaaiouera of
jiiaticiary, they and each of them ought to be
Cuniahed with ihe pains of law. And particn-
irly, they and each of them ought lo be putt
out of his m^eaty'n protection, aud eadi ot'
ibeir landa, leneracuta, gooda, cbaltellaor morc-
aUet Ibrfaulted to hia majeatie, aud otherwise
punished conibrm to the aaid iiatote of Pm-
tnunire made in Epslaiid iu the sixleenlh year
of the reigne of BicnanI the second, lo the ex-
ample and terror of others, lo oommitt tha tike
Akxandtr Crmfurd'i Canfaiitin.
The shore named Alexander CrawfunI, nne
of tlic panneU judicially, in presence uf the
lords and ssbysen, acknowledges and confessea
the tybel), in so far ns relates to him, aud
hnmbli throws himtvlf in the kiiiz's mercy.
Sit Subscribitur,- Alex. CiuwTuRn.
Ad. Cockburne, 1. P. D.
Purttifri. — Sir Dmvid Dalri/mpU of Uailn,
barunel, his niajeiit} '• adrocale fur lua hifrhness
interctli sir JunMi SleicatI, bis majesty's ro-
llie Lybel being read and fully debate uva
*wc, JD presence of the nid lords, panoells,
and aaaysers, Ihe lords justice clerk and com-
niiniionera of justiciary, ordain both partiea to
giro ia (heir iabnnatiuis, Ihe pursuer lo gire
in hit, betwixt anil Wednewlay's night next,
and Ifae paDMltB to gire ia theirs, betwixt sod
Friitsy'a uighl IbereaAer in order to be re-
conled j and cootinaed (he dyai of ^e lai^
cauM! till Hotrfay oext at oyne o'dock, and
entained anysera and wiloenes to aiteod then,
Moll iimlartbe pun of one biiadred mcris.
Villuatt Hogg.
The Ktng't Advocate has raised a L\
Aire the lords of justiciary against it
John Grakame and William Hogtr, I
upon the fourth act first session nf her \i
jestie queen A nne'i parliament in Scolli
tiluled. Act against Leaaing Makers am
derers, and the acts therein recited, mni
cially reciting the worda of the 134 act,
meot 8th Jamea 6lh, aud also foundei
the late statute made iu the parliament o
Britain, iu the Cth year of her said late n
lied, Act for the Security of her m:
person and gnrerDroeot, S^. Where
ig*t other things provided. Thai
>n or persona ahall maliciously and d
reaching, teaching, or adiysed ap
ir, maintain, and affirm, that ihepr
prince of Wales, who now Styles himsi
of Great Britain, or king of England
amestheSrdi orkingofScol
of James the ath, has any r
I of these realms, erery such
shall incurrthe penalty of Praemunirs, (
to the act made in England in the
Richard (he 3d.
The L^bel subsumes, that the defem
guilty Ot the saids crimes, having u;
ISIh, or IGth of December last, drink
Pretender's heahh, under the name
James the 8lh, and also drauk to his
resturalion ; aud Ihe libel mentions,
words were pronounced loud niih
having hautboys playing, aud the di
showiti); other marks of joy, in upen o
aiiddeiyani»«f tlie laws generally m
ticularly above menlioDed. And that
fenders being surprised in the act by 1
guards, fled, but being incontinent pursi
were made prisoners. And concludes
which, they and each of Ihem are ^uill
art and part of the breadi of the said la
ought to be punished with the pains
And rarticularly with the pains ol' Pne
Tix. To be putt out of the king's ptotecl
each of their Isnda, tenerocnli, goods,
or moveables, tbrfanllcd to his majestit
The defender premised to his mate,
facts Ij belled being denyed, he (hong
self bound naverth^es* to declare, Iha'
could be proved, they amounted to a ti
imprudence, and mdiscietioa very-
worthy, but that erery act of imprudt
not amount to a crime pualaliable by la
And tberelore, the first defence waa
defender John Urabame was in drinl
degree, aa not to kaow or ictnember
It waa answered for th« pmaaui in
place, that by the coniBoa opinioB of
(he tfuilt of oimiBal tacbi ia iacnaaw
qnaS^ of dM pcriMs aguoit whan
B]
^r drinking the Pretendcr^s Health,
A.D. 1715.
re
Mmmitted, aod other drcamttancei . Therefore
tfw same fact, which done against a person of
Ww condition, would import but a small con-
icBiptorimpnideiicenot punishable ; yet being
Ant aicaiDst a magistrate or person in dignity,
wwild lie crimiDal and punishable. Tlie same
MS vhick at one time might be innocent and
iaofleBHTe, am the drinking of a health, vet at
uMbv time may be criminal and punbnabie,
vbcB it is the noited badge and symbole of
fMfiirlbat are disaffected. The same facts
■M would inferr but a light dignity in thtf
SMBB sf a priTote person, when they come to
kipplyed to the state aod ilignity of a king,
if Ibrj be imprudent and hinme worthy, are
erinMsl. But more particnhrly, as to the de-
facB, it it answered, First, That drunkenness
ii BOt araperiy a defbnoe exclusive of the lyhel,
lbs only dfect U can have is to make an allc?ia-
lin sf the sentence or punbhment; drunken-
I not deny the crimes, but only excuses
to lessen the guilt : Ffor, it the fact
mnese Hid affinti an exemption to eleid
ibe Ifbel, it would inTile men to commit crimes,
fir it were easy for a man that is embittered
vi^ a^ rooted malice to get himself drunk,
~ ' in that stale to perpetrate the greater
My, Drunkenness is not relevant even to
ilsia ao alleviation of the sentence, for drink-
>if to excesa is not only an imorality, but
is a crime, and he that is drunk
re illicit^,' which certainly can
I bim a legal exemption, cither
the lybel, nor for alleviating the punish-
'M
3tfy, The drunkenness has by the custome
•t Maa all nations, lieen admittc<l as an allc-
viuMaia cases capital!, that can take no place
bar, ferasae of the acts ly belled on inflict the
laasfdMi. But,
<lbfy, Drimkenness is not relevantly pro-
pnifd even lor alleviation, because it is then
*bIv relevant, when it is alled^ed to have been
^ ibst degree, as to deprive the defender of liis
Jid^ament and senses. But the lybel mcntimis
ftcts that exclude the possibility of that de-
fect, viz : The defender came with baut-
kyi to the place, and drink bciu^ brought to
wn, tlie said John Grahamc called out The
bi^ beahh, Crawford another of the company,
crvcd out What king, king Janirs tliR 8th ?
iipos which the said Grahame and Hogpr, as
vtU as Crawfurd, drunk to the health of king
JiBMs the 8th, and after that proceeded to
^ak to bis happy resluration. And when the
fttsrds came up, he had his senses fresh enough
knin. aod emleavour to make his e!>cape. If
1^ facts or the substance of them be proven,
Hibey are ly belled, it were in vain, or indeed
to lay a soare'for perjury, to allow the defender
h pove that he was dead or stupid drnnk.
^ therefore the Brst defence ought to be re-
Aad whereai the defender excuses his not
p*"iug the crime, laying the blame upon
■> kaag drunk, and ha? iog forgote ; the pur-
suer cannot hut observe, that this excuse is but
an aggravation or mark of obstinacy, for the
defender had never time to forget, he was taken
* in flagranti delicto,' and keept prisoner till
next day that he was examined upon the facts
in his presence, aflter which he was committed
and remained priboner till he was indictcil.
Where then was there time for him to forgett ?
He was certainly sensible of his guilt whence
fled, he nas taken in his flight, and has still
been keept in remembrance of it.
But since the defender thinks, that his in-
sulting of the government may be evaded or
excused, it reraams now, that the lords of jus-
ticiary do convince him of the contrary, by
maintaining the vigour of public discipline, for
indeed otherwise his tryal might have tliis bad
effect, viz. To shew how cheap and easy the like
offence may be committed in time coming,
which might grow into more incurable dis-
orders.
The 9d deffence proponed was, that the
lybel is founded upon the acts of parliament of
Scotland against leasing makins^, &c. And also
upon the statute of Great Britam the 6th of the
late queen, but the judj>;es cannot proceed upon
these laws joyntly, Uf cause the punishments
are different. And also because, where any
new penal law is made for punishing any tact
punishable by a former law, the former law is
su^ierseded eo iptOt and since a man cannot be
twice punished for the same crime, he mnstbe
punished on the last.
And to confirm this more, it was urged for
the defender, that by the late act Anno 6to
Regime, there are several things introduced for
the benetitc of the subject, whereof the subject
would be deprived if they were to be tryed on
the old acts concerning Icasincr makeing. As
for instance the new act requires a malicious
direct deed, by advised speaking, declaiiing,
raaintainiiicT) and a!Hrmin«^. And it provide:^,
that no person shall he prosecuted upon that act
for any words spoken, iniless inlbrniation he
given upon outh, wiiliin three days after the
words spoken, and the prosciMitiou be within -
three months iifiersueli inrnrmalion. And it is
agaiii St reason, that upon the same facts there
should he temporary actions and perpetual
actions.
It was answered for the pursuer. First, that
he cannot btit observe, tiiat the crime in ques-
tion tieinti^ a contempt of the kin>;V :i>ithority
and title, the very defence founded upon the
merciful statutes pasi since the Revolution, is
an a;7gravation of the crime. Ttiere have been
times when the least offence has been strained
to be the highest treason, or drawn within the
compass of severest laws, tlie eon.vtant character
of tyrranic. But now by God's good provi-
dence we are under a •gentler aduiinistiatrun,
the government and tlie petqde are in tiie same
interest, and the laws ihiiionstrate nmlual con-
fidence, the lirst consiMjuence of so happy a
statute.
But this gentlene«-'s of the laws is not to ex-
pose them to elusion, the laws ore the mora
7J
1 GEORGE I.
Trial of John Graham and othergf
I
particularly to be observed , because the pooish-
inents hare beeu soiUned both in the case of
leasing niakin^r, and in that of the statute of the
6th of the queen, and Uie same fact must be a
more attrocious crime, when committed a^inst
so ijrentle a government, than it would be in the
statute of rigour and terrour.
This being premised, it is more particularly
answered, that the defence is irrelevant, ffor,
First, it is no new thing, that several acts of
parliament should be msuie fcA- restraining one
and the same delict, and that these severu acts
should be made the major proposition of a lybel
against offenders, a matter so nottour, that it
needs no particular instance to clear it.
Sdly. The general rules of law in tliat case
are against the defence, for though it be a
maxiuie that * posteriores leges derogant pri-
* oribus,' yet that is only wliere the posterior
law abrogates or is directly contrary to the
former, for otherwise a law made, or a law in
possession is more tioivourable than a new law- ;
the law is jealous of alterations, and admitts of
them only in cases of necessity, and so far as
the necessity requires. And therefore the civil
law has excellently defined, that prior laws are
drawn to the posterior, yet it subjoins the ge-
neral caveat, *• Sed et posteriores leges ad pri-
* ores pertinent nisi contrariee sint. L. 26, 27,
' 28 ft*, de Legibus.' And very agreeable to this
and to the present case, Hermo;;enianus and
Paulus the lawicrs have said, ' Cum ex unode-
' lido plures nascuntur actiones, sicut evenit
* cum arbures furtim esse dicuutur omnibus
' experiri permitti post magnas varietates obti •
* nuit. L. 32 sect, de oblig. 6c actQuotiens Lex
* obligationem introducit nisi si nominatim ca-
* verit, ut sola ea actione utamur, Eliam veteres
* eo nomine actiones comuetere si ex eodem
* facto duse competant actiones, postea Judicis
< potius partes esse, ut quo plus ea sit in reliqua
* actione id actor ferat. Si tan turn idem ut
' minus id consequatur L. 4 eod.' And so the
same Paulus,' Si furtim arbores ccesoe sint et
* ex Lege Aquiliii et ex duodecim tabularum
* dandam actionem Labro ait. Sed Trebatius,
* ita utrainquc dandam ut judex in |K>steriore
* detlucat, id quod ex prima conseciita sit et reli-
* qua CFUudemuct,' and it is observable, that the
* actio arborum furtim caesarum,* and the ac-
tion * ex len^e Aquilia' \t ere both penal, and bad
ditferciit penalties. That if the ' Lex Aquilia'
f^'as to repair tlie damnage, according as the
thing had been of greatest value for a moneth
before tlie thing happened, which very often
was much more than the real value, and the
action * arborum furtim ctesarum' was given
in ^ Duplum deductfi jirius arboris cmuD esti-
* matione/ Nay, iH'sides these actions, there
was yet a further punishment upon a separate
fundation, ' secunuuiii est autem eos qui ar-
* Iwres et maxime vites cocciderint, etiam tan-
* qiiam latrones puniri. L. 2il eod.'
To apply this to the present case, whereas
the defender pretends, that the former laws
concerned leasing mti king are supersedeil by the
new hiw, Audo 6lo Kegine, if the said statute
Anno 6to Regins does extend lothe pamshB^
of the same facts: ^
It is answered, First, that the defeoder'Bpil
position is contrair to the authority of theMl
said laws and reason itself.
3ndly. If the facts shall be foond^to
within the statute Anno 6to Regine,
cording to the principles of the CivillAWi
mentioned, the defenders being puDisbed'
form to the statute Preemunire, there
no occasion for the judges lo apply the
mentof the laws made against teanog
unless the circumstances being proven
cious, shall deserve a further correctioii,
that case upon tlie fundation of the lawi i
cited, the judge is to proceed.
And Sdly. It was necessary to foml*
lybel upon both laws, because the act flf
6th of the queen being a new statute, iti
easily forseen, the defenders would
anxiously to alledge that the facta lyl
not fall under the compass of that stati
indeed they have done, tho without aoy i
foundation.
And whereas it was further alledgal,
the statute of the 6th of the queen, oovla
benefite to the subject, which cannot ba ckHi
by trying the crime on the old statotea agiU
leasing making : "
It is answered, that the defender miilakl
for first as to the words, ' malidontly t
rectly by speaking, shall maintain, dedart^ll
afiirm ;' these contain no new benefit tolhtliri
ject, for all lawsimposing pains upon any fiMl<
offence, do expressly or tacitly require MiiB
* deliberatum propositum,' and where th» i
fence consists in words, it must be by flidi
taining, declaring and affirming, wbicb M
tains denying in the sense of the atatnlei i
appears by the words that immediately Mill
' and affirm that our soveraign lady toe quo
is not, &c. *and therefore these words osnli
nothing new*
2dly. As to the provision, that no pcnkw tb
be prosecuted but upon bwom informalioa
words within three dayes at\er they areipokl
and pn»secuted within three monetbs after i
formation :
It is answered (Imu) that the words of t
statute are, ^ that none be prosecuted by veil
of this act, and that none be convicted by vcft
of this act.' — And therefore indeed, if the m
suit were founded upon a sworn infbnDatM
and only upon that act, sometliing mi^t
said, why the defender should not iDCurr 1
penalty of Premunire, unless the sworo infi
mation had been within three days, and 1
prosecution within three months.
But the case is, the defender was takea
Jiugranti delicto^ brought prisoner in lo I
guard, where he was keept till he was broii|
before a magistrate, and there the wiinca
were bnm!y;ht face to face to declare tbefae
in order to the question, whether he sbouM
set at liberty or committed. The facta appoi
iog nottour, as far as in that case was aeo
sary , in order to Ibe quealion ot' impriaaanni
firimUmgike Pretendet^s Heahh.
JL D. 1715.
[Id
vhere be renwiocd till
ded. If ibe ooannittmeDt wai legtl
ihoB If ifd flagranti delicto^ then
MM Biol ccrtaiDly be legal, be-
fcomautud for tbil crime, be cid-
end bat by doe ooune of law.
Me vf the statute !■» wbere words
,aad are not presently cballenged,
(I most befin by a sworn loforma-
tbree dnyes, for these kinds of iii-
if the natnre of iiiinries by the civil
I good rsmon the action ceased if
nbiio injnriB.' That is, ' si quis
d animnm non revoea? erit.^— The
iks, that mnoiag of three days,
f sworn information against the of-
krse months without prosecntioo, is
ffidence that the go? emnient passes
lory, so far as not to insist upon the
nemunire. But the defender being
^roBli deUetOj is not within the cage
rtsion ; the ^vemment instantly
d animum injuriam,' the offender
a the offence, and there needed no
to be sworn against him, but if
Ibe same fiM:t bemg punishable by
England, as a misdemanour, as un-
it is, the criminal pursuit tor such
or still remains, but must be prose -
irding to the laws of Scotland, and
I can only be upon the foundation of
psuist leasing inakiug.
lap then what concerns the Answer
EMoe, it is plain, that tbe lybel as it
d, is Tery regular and well founded,
kt laws of leasing making are not
Ihj the act of ibe 6ih of the queen :
wefore it was necessary to l^^bel
I iki, that the defender being tryed
smes of leasing making, suffers no
ir4unage.
ervas, it was further alledged, that
Iocs only conclude the pains of tbe
lute.
swered, that the lybel is expressly
I tbe acu of leasing making, and in
Dptioo says, * it is of verity,.that the
Niers sre guilty actois art and part of
d crimes,' and after the narration of
t of tbe facts, follows these words * in
mce and contempt of the laiis gene-
particularly above mentioned' and a
', * they and each of them are guilty
ich of tbe said lans which or any
>f being found proven, they ought to
d with tbe pains of law.'
reason why the pains of Premunire
particularly expressed, is because the
9g new and less known, and referring
i in the time of Richard the 2od, It
iita favour to the defenders to trans-
r that statute the words which con-
inishment. But from thence to re-'
ybel to the case of tbe statute of the
i|oeen, is so manifestly against the
e lybel, that the defenders must be
1 M what the lawyer says, ** L. 19
sect ad exhibenduro non oportere. Jos civile
calumniari, ueq. verba captari, sed qua mente
quid dioeretur anima advertere convenire."
The third defence proponed was, that the
lybel is founded on the acts of leasing malEing,
and the foresaid statute of the 6ih of tbe late
Jjueen. And Ua fit, that the facts lybelled,
ail not within any of these statutes.
And first, the ststute Anno Sexto ReginsB is
in these words, that if any person or persons,
shall maliciously and directly by preaching,
teaching or advysed speaking, declare, main-
tain and affirm, that the pretended prince of
Wales hath any right or title to tbe crown ; it
is agreed, say the defenders, that here is no
preaching or teaching, tbe question is as to ad-
vysed speaking * nuda emissio verborum„' and
there the benignity of the lawgiver, knowing
how much men are liable to escapes without
malice or premeditation ;
8do. How apt witorssesare to mistake words
or to forget when things are not recently
brou^t to prosecution. Therefore the law
requu^ these qualities, First, that the words
be spoken maliciously. 2ndly, Directly. Sdly,
Advisedly, and 4tbly, That this may tbe more
clearly appear, the words are ** by advysed
speakmg,declare, maintain and affirm," declare,
that is, openly and publicly, maintain, in tbe
sense of the £n:;lisn law, is by argument to
defend or to sup|K>rt, affirm, is to conclude and
plainly to assert, and all these must concurr.
Stio. Tbe information must be given within
three dayes, and tbe prosecution must be with-
in three months.
4to. The case of advysed speaking is sepa-
rated in the law from that of^ preaching and
teaching, for as to speaking, the information
must be sworn, and the pnisecution within the
time above mentioned. And in the first words
* shall by preaching, teaching, or advysed
speaking' there is s disjunctive particle (or) to
separate the case of speaking from the former
two, which confirms also, that the three qoalities
(declare, maintain and affirm) are to be taken
conjointly ; ffor the lawgri?er having used tbe
disjunctive particle so immediately before, would
certainly have repeated it there, if it had not
been intended that those three must concurr
joyntly.
And thus the defenders imagining, that they
have established the sense of the law, for ap*
plication pretend, that there was no malicious
speaking, nor is malice so much as lybelled,
nor any fact to qualifie it.
2ndo. There was no advysed speaking , tbe
defender being young, came to the street in the
beat of drink, and uttered the words lybelled.
3tio. There is no declaring, maintaining or
affirming, what is lybelled are transient words.
And as to the substance of the fact,
Ist. The drinking of a health to any body is
forbid by no law, and it is of itself innocent.
2do. The drinking a health to the king, not
adding of Great Britain, does not imply tbe
drinkmg of the Pretender^s health.
3tio. Tbe drinking to king James tbe 8tbr
•■V a*
?v. i»-<« : •« cv^me
X
;..c > y:«5*;i.\l io
.v.*
ft
.. a: ^ Lzyti the
V ■•
. ■ u» j^ 4ttiritii:if
p«>. -«-' •
f
^ •-'*^
.« •
V,
1. \
• ••\ « '
• \
» •.
t
It
Tiiat nfJuhn Graham and atherjf
that bdoDjf to it ; as for ioitance, ean the
lertioff ot the iisur|M;(l title adyjaedlv, bt
fcrentfrom doing it maJiciously ? Or ear
aawrtin|r ndvysedly and malicioutly be diSf
from doioflr it directly ? Can one inaiiitMi
declare what be does not alKirin.
It is then certain, that the worda of the
are to be taken in this sense, ?iz. The affin
ot' the title of the Pretender inferrs the jm
nient of the law, and because this araii
may be done by wry tin^ or speaking, bbA
S|)eakiui^ may be done by preacbiofr, toafll
or any other way, whereby in words th« M'
lion of tlie ofiendm is plainly aignified, tM
has made use of ? ariety of wonis, to nf
one and the same criiney for the crime dMi
consist in any form of pronouncing of OM
words ; it consists in tlie asserting of tlM
of the Pretender, whicli whoever doea m w
erer form, does maliciously, directly amI
vyscdiy, declare, maintain and affirm bia Hi
Sdly. Thai the circumNtanccs lyhelb
such an affirming, will apiiear to any mhm$
aiders,
First, tliere are certain facts to whicb t
tome hutii affixed a determined sense, and tl
is none whereof the use and meaning is ■
incootestediy uudersiood, than thatof drial
healths ; is any man ao ignorant as iiottoki
that tlie going to a publick place aud drink
the kiii;;'8 health, is a publick acknowlnl
ment of his authority, as well as a wish for
long life ? Is not the common form of ^L
live the king," a formula of homage km
both in sacred and prophane history P And
any more than the drinking of a health P JH
do their homnpfe by sivearing directly, th
that hare offices by taking the oaths ; bvt
body of the people have no other way of
pressing their homage, but that acclamaft
«< God save the king ;" it were fniitieaa lohi
more reasons in a plain case.
2iMy. As the drinking of the health ui
that designation and stylo, is in the cont
acceptance an acknowledgement of the I
tender *s title as king James, so the aMan
of that title is the cause of bis attainder ;
title of king James the eight, is one of
usurpations whereof the act complains,
the wonls are, *^ He takes the title oft' k
of 8cotland, by the name of James the eigl
and tiierefore the drinking of a health to ^
person under tliat name by a Scotsman M
the street of Edinburq^h, though he did not
the words ** of 8cotland," can inijiort notli
else, but t be drinking to his pros|ierity as fa
ing that right, wliidi is directly and malicioi
to affirm his title.
Sdly. The circuoostancet likewise coni
this, it was not affirming for argument si
there was no dispute in tlie case, it was not
t'>. lU wixsWr uiUtakcs the meaning of firming ex calart iracundir^ there wasno<|i
i»>i iUtM> M*veial wonls of malicious, I rel nor contradiction, it was a deed d«-iibera
ku( .iJmm-^I ^|M'aking, maintaining, de- done. The defender came with his aco
«mJ .tiiiiiniiivf, are no otherwise to be plices to a certain place of tlie street, when
. »i
v»
w^ »wh v aL<^iBi an
.••.- « J M v«r«2i firi-
V ..w-w- M in« crown
'^ r^at^% Bwf could
v«fi H Sviknil, be-
...... -^ .(-»&k9CkML«a and name
■ 'iNk 1'^ (» king James
... . . % -vtMi HuiiHi» *and tohia
... wi|^«'o M 4iti miog of Ilia
. . .w^ ^»i ■ "^ KNHUrary, it ira-
.. '•.-v» ■ ' t'.tiiriider baa no
...> :* s . uit by alawtobe
. .. * .. o . o. ««aru a person is
. .*,.tM V ffi^, AVI ,^ru/iir, that
. ..u .« -^ ^H SkV4.«nd is called a
„.v ***»• , I »^' ****>d * restoration'
. v%i\ .1... I'.vuuou, it is accord*
,..v.i«^ v* >^ >^*« t^* be taken in
A.I 4.S vi>t%Mr a crime.
.•.0 v«|iiM*aUy insist upon
uo w«»ids directly afBrao-
I. ,1 > i>v.viuk-r. It is butan af-
v.« M. M huh m matter cri-
. . ■ .vi > \c «usi»fr to this way
I «i .A* i'v*. .<aU put the defenders
I t«v*.«ia I i>i iiuw cited, ** non
. i\4:(> 1 ui iuN|ue verba cap-
..kv«(vi.l I'cviviur auiinadver-
i.i.H'i «*( AiuithiT maxim,
,. .1 .^.... ^.ii ul i.ii*it ipitid lex pro-
.vMi «%!%• «|ai sAUin verbis leges
> * . -v'i«uk«\'<iu," licz 'ii>, Hect.de
I.I ^i:t«thck part of tho law is so
\ > I .KiUiuii tsi in legem com-
^ii, ««iba Ir^isi aui|dexus contra
tcknuAu'M. lav {wuias incertaa
.«. K^Ai %%f (\Mitia juris scntentiam
• o i \%kU»\iM\\ iVsudulenter exou-
V i «\hI. . MUillhtti this was agree-
iti.i\ t*(* «i'i*u in the act 108,
Uui. •« iho I si, and others made
.iwM% I'i ilii> Acis of parliament.
.'.v ^Mtiicubily answered, to all
•^... I « iiuMis u|Kin tbo words of the
■UU'i't,
•( ii.'«vi wstt there n more plain,
■ ■■- , .l.kVi'i. iuU\seil, maintaiuing,
4.1 1 AUuiiiiu< llit> title of the Pre-
4i>
II'
i. 4« i.» ilio ipiality of the malice,
• « tvui4i ttkihs iiniMi, it is in law
oiti ihol.ici!i,aiul is uutby itself the
,MiA ilv. ttiau as they contain a de»
k.,>o\*i 4Ai'iHhouB fact with exaggentumi
thought fitt to baity he came with musick, I
the BDOMui timt in the iBonung might con
Jvr itiMng the PrOendet** Heabh.
A. D. 1715.
tl8
nw words nid to be spoken by the
lo not fkU under the description of that
eh CDsctSy That if any person shall
■ly and directly, by advysed speaking,
vaintaiD and amrm, that the pretend-
M if Wales, who now styles himself
Gnat Britain, or kin^r of England by the
f Jasiea the 3d, or king of Scotland by
m of James the 8, hath any right or
ibe crown of these realms, shall incurr
tkf of PrBmunire. And the drinking
James 8ih's health, and the drinking
■ppy restoration, is neither a malicious
d declaration, maintainance or affirma-
■i right and title to the crown of Great
, and the lybel does not bear, that these
acre maliciously spoken, or that the
dU thereby declare and maintain the
id prince of Wales had any right.
The set reqnires, that the words where-
right in the Pretender is affirmed, be
§j wpekt. But the pursuer has laid no
Mmi in his ly bel, firom whence it might
ltd, that these words were advysedly
« the ooDtrary, the pannel is brought
aajTi buxsain^, dancing on the streets
t low, all which circumstances are in-
■t with deliberate and advysed speak-
as to the other acts against leasing
and slanderers lybelled upon, it was al-
far the pannel. That these acts wera
■ded and inno? ate by the foresaid sta-
ihepariiament of Great Britain, in con-
sseT the 18th Article of the treaty of
whereby it was agreed. That the
hieb concern publick right, policy and
{■tesmeut (as the old Scots acts cor-
ds) sight he made the same thn;ughout
hsfe United Kingdome. And supposing
IS Scots acts were still in force, which
veil be admitted otf, for the reasons
dl attcrwanis be more fully cx)ilaii)cd,
' facts charged upon the pannel, are
danderini; the king to his sulijects, nor
fcts to ihe king, which is the descrip*
r law gives (<f leafiu;^ makin;^, and
y such slanderers d'j iucun- the peual-
Btioned in these actd.
is the sum of the defence, and therein
Del humbly conceives he is miicli siip-
by the great length to which tliis argu-
drawn, in the pleadings and inforiua-
B the other side in civil cases, which
all be comprehended under the express
of positive law ; there is place f(»r in-
5 and conjecture, but it is the happiness
constitution that such facts as are
d are plainly and clearly forbid by
notes, and therefore need little argu-
• make them plainer. The law speaks
H^ and if this is the case of our criminal
I general, it is more particularly to he
I, where the Uw concerns words said to
ken, and requires that such words be di-
i4 advysMlly emitted.
iihcr this fact charged on the pannel be
HL. XTII. ^
so or not, will appear from a more particular
examination of the answers made to his de-
fences in the method as they are set down in
thepnrsne^ information.
The pannel then in the first place having al»
ledged, that he was in drink the time when h%
is said to have spoke the words labelled ; the
pursuer premises to the answer a general ob-
servation, that crimes are aggravated or less-
ned with respect to the quality of the persons
against whom they are cumniittetl, and the ob-
servation is certamly just, but then the law
upon which the party offending is to be con-
vict, mnst first make the fact a crime, and
that is the poynt which the pursuer is to make
out ; and here the pannel would not be under-
stood, as if he meant that the fact charged
against him was not an offence, but what hia
concludes is, that it is not an offence falling
under the description of tbe laws mentioned in
the lybel, and even though it were, the de-
fence of drunkenness is relevant totally to ex*
elude the lybel, and nota%an alleviation only.
For tho' as the pursuer observes, drun-
kenness does not take off the fact, yet it
takes off the greatest crimes as much ais
fnry of fatuity, because such persons are
incapable to consent or to adhibite a free act of
the will, but there can be no doubt in this mat-
ter if the natura of tbe libel is consideredp
which is laid against the pannel upon a statute
requiring malicious and advyscd speaking.
And therefore it is, that our famous lawier sir
George M'Kenzie, in his observations upon the
act 'i, scss. pari. 1st Charles 3d, entitled, Act
for Preservation of his Majestiu*s person, where
the same \tcrds of pn^achingaud malicious and
advysed speaking, wJKjrcby a pnrly expressctl
cr declared his treasonable intentions in the
matters by that law forbid is dticlared treason,
Sci3's, that .such as wercdrnnh when tliey spoke
those words, are not punishable by this act.
lint tbe pursuer says, dnmkenness is not re«
Icvantly proponed, because the nannel does not
alledgc he was drunk to that degree, as to he
deprived o\'\\is judij^enicnt and senses.
It is answered, that the Defence nreds not be
so qualified, because the fact objected oj^ainst
him is malicious and advysed speaking, which
any degree of drunkenness is sufUcieut to ex-
clude, so as to save the defender from being
convict upon the laws lybellcd upon. And the
insinuation, that the paunel coulrl not be drunk,
because he was ubio to go oU' when the city
guards appeared, is i.ot concluding, unless
the pursuer subsume, that every party who
walks is not drunk, and is capable of deliberate
I thinking and speaking, which the pannel cannot
adniitt.
The order nf the Defence and pleading
leads the pannel in the next place to take notice
of the Answer, to u hat was objected against
'the defect of the ]>ursuer's lybel, in so far as
it is founded upon the Brilish statute, w hich
liears that no person shall be prosecute by
vertue of that act for any words s[K)ken, unless
the information of such words be giveu upoa
C
15]
1 GEORGE L
Trial of John Graham and otkerif
oountry of England or councellon thereof,
tendioif to the remembrance of ancieut grudjures,
whereby hatred may be fof^tered, and misiike-
ing raised between his majestie's subjects of
this island, is made criminal under the name of
leasing making. So that there can be noUiing
more evident, than that the crime of leasing
making consists in uttering false and scanda-
lous speeches, tending to stirr up his majesties
subjects thereby, to mislikeing, sedition, un-
quietness, and to cast off their due obedience to
tlieir kintr, to their peril and tinsel.
2dlv, The facts 1y belled are such, for what
speech or deed can shew more contempt to the
majestie of the king, or what can more endan-
ger his estate than the publickly owning the
title of another, and wishing his happy restu-
ration ? What can more stirr up the people
against bis lawful authority, than the disputing
ot his title? Or what can more clearly invite an
unnatural invasion, whereby this country should
be made the scene of blood, cruelty and vasta- -
tion at the hands of people whose relipon di-
vest them of all faith, mercy and pity, to those
whom they falsely reckon hereticks, than the
publick profession of a desire to have a declared
enemy to our religion and our happy constitu-
tion, upon which our laws and liberties depend,
restored ?
It scarce deserves mentioning what the de-
fender so often observed. That the acts against
leasinc^ making were odious, for so they were
indeed, as all powers in the hands of enemies,
or the hands of a government engaged by reli-
gion and mistaken principles, against tlie inte-
rest sacred and civil of the people, then indeed
the acts of leasing making were strained. But
since the happy llevoTution that grivance
amongst many others has been removed.
What was useful in the acts of leasing making,
and indeeil all that concerns the present ques-
tion, is preserved by the act 4th pari. 1703, the
bitterness of the punishment is restrained, and
80 the odioasness of the law taken off. Nor
can these laws be said to be old and obsolete,
which have been so lately under the considera-
tion of the legislature and approven.
To conclude then in the words of the for-
cited 134 act of the 8th pari. Ja. 6th> tho' his
majestie continues in love and clemencie to-
wards all his good subjects, and most willingly
seeks the safety and preservation of tbem all,
and his servants in his name proceed with the
same regret against the guilty, vet seeing the
law and authority must be vindicated against
open insults obstinately justified, there can be
no doubt but the Court will sustain the lybel,
and find that the drinking a health to king James
the eight in the open streets with huzzas, and
the drinking of the said health, or to bis
happy resturation, relevant to make the defen-
ders guilty of the crimes and according to laws
libelled.
This debate being a\ to Af r. Graham for
whom compearance only was made, and Mr.
Hogg the other defender having for himself
«nv«d the btneata of tlM same 4mncei wludi
the Court allowed, the tiOcd Advoc
peated the same answers.
Sic Subscribitur^ David Dalbti
February ath^ 1715.
Information for John Grahame, m
James Grahame of Newtmm
AGAINST
His Majestie*8 Advocate.
His Mafettie^t AdvocatehnM been pk
raise and for liis higlmess interetit, to iai
criminal process before the lords commii
of justiciary, lybelling upon tfae*acts of ll
liament of Scotland, made against I
makers and slanderers ; but more cs^
upon the statute made in the parlisa
Great Britain in the 6th year of tbehte
intituled, '< Act for the Security of her J
tie's Person and Government." WbfftJ
amongst other tbinirs enacted, That' if ai
son or persons, shall malicioualy and i
by preaching, teaching or advyscdspc
declare, maintain and amrm, that the pic
prince of Wales, who now styles bimici
of Great Britain, or kinf of Engtend I
name of James the third, or king of 8i
by the name of James the eight, hi
right or title to the crown of these i
every such person shall incurr the pel
Praemunire. And subsuming that then
guilty of these crimes, in so far as M
to the health of king James the eigk
to the happy resturation of the said I
der, under the name of James the
Which words, to the health of kinglH
eight, and to the happy resturation d
James the eight, he duf pronounce all
huzza'd at each health, dancing at th
time, and having hautboys playing. Ai
eluding the pannel is guilty of tlie hn
the said laws, and therefore ought to
nished with the pains of law, aiid partii
that he ought to be put out of his majeslt
tection and his lands, tenements, goodi
tells, or otiier moveables Ibrfaulted.
It may appear even from the lybi
whatever was done by the pannel tl
therein mentioned, was the conseqaei
debauch by too much drinkmg, and node
act So that the pannel not remembris
had passed, denyed the Ivbel ; and in
fence, it was alledged. That hownvcr I
charged upon him, was a very great li
indecency, yet he could not ior il bn <
u|ion the laws generally or speciaUj M
in the libel.
For Imo. As to the act ainde is Nm
ment of Great Britain, entitokd,- ^MM
Security of her Miyestie'i ppnBB.«Mi
ment," tbe necessary wm
cuting any person np^
spoken, were not in lb
been no infonBti*
oath, I0opa«
**
^ dHMUHg ike Praentla*s Heabh.
A. D. 1715.
[18
?be words nid to be spoken by the
to not fidl uodcr the description of that
leh enacts, That if any person shall
■ly and directly, by advysed speaking^,
vuntain and affirm, that the pretcod-
Hs of Wales, who now styles himself
I Gmt Britain, or kin^ of Enfi^Iand by the
tf Jioies the 3d, or kmg of Scotland by
■e of James the 8, hath any right or
(ihe crown of these realms, shall incurr
Mkf of PrsBmunire. And the drinking
I Jtmes Bih's health, and the drinking
■fpy restoration, ii neither a malicious
net declaration, maintainance or affirma-
fkii right and title to the crown of Great
lyisd the l^hel does not bear, that these
vera maliciously spoken, or that the
I id thereby declare and maintain the
M prince of Wales had any riffbt.
i Tbe act reqnires, that the words where-
liifbt in the Pretender is affirmed, be
rif ipoke. But the pursuer has laid no
blNB in hb lybel, from whence it might
M, that these words were advysedly
I m the contrary, the pannel is brought
ikiw, huzzaing, dancing on the streets
b ttt, all which circumstances are in-
tBt wiih deliberate and advysed speak-
1 ■ to the other acts against leasing
■isd ibnderers ly belled upon, it was al-
i ftr the pannel. That these acts were
WM and innof ate by the foresaid sta-
'ikptriiaroent of Great Britain, in con-
Mi «f the 18th Article of the treaty of
■i vbereby it was agreed, That the
'*Ucli concern nublick right, policy and
' fwnoieiit (as the old Scots acts cer-
7di)Bi^it be made the same tlirciigliout
"^Uaited Kingdome. And supposing
IfcffipDU acts were still in I'oroe, which
' 'cit be admitted otT, for the reasons
UH afterwards be more fully ex|)laliied,
^ ficts diarged upon the pannel, are
'|diDderin<; tlie king to his suhjects, nor
^ects to the king, which is the dcscrip*
ir law gives oV leafing making, and
9 lurh slanderers d'j iuciirr the peual-
ntionrd in these acts.
>ii Ibe sum of the defence, and therein
Hifl bambly conceives he is much sup-
by the great length to which this argu-
I drawn, in the pleadings and informa-
a the other side in civil cases, which
ill be comprehended under the express
of positife law ; there is place fur in-
I ind conjecture, but it is the happiness
coostitutioo that such facts as are
fl wn plainlv and clearly forbid by
Mhl and therrfhre need little argtt->
I Mt Ihem plainer. The law incSkt
iriUi«tfiecMt«rmir '-' -'
■0 or not, will appear from a more particular
examination of the answers made to his de-
fences in the method as they are set down in
thepursne^ information.
The pannel then in the first place baring al»
ledged, that he was in drink the time when ha
is said to have spoke the words labelled ; the
pursuer premises to the answer a general ob-
servation, that crimes are aggravateil or less«
ned with respect to the quality of the persona
against whom they are cumniittetl, and the ob-
servation is certamly just, but then the law
upon which the party offi:nding is to be con-
vict, must first make the fact a crime, and
that is the poynt which the pursuer is to make
out ; and here the pannel would not be under*
stood, as if he meant that tlie fact charged
against him was not an ofll'uce, but ^vhut he
concludes is, that it is not an offence falling
under the description of the laws mentioned in
the lybel, and even though it were, the de-
fence of drunkenness is relevant totally to ex-
clude the lybel, and nota%an alleviation only.
For tho' as the pursuer observes, drun-
kenness does not take off the fact, yet it
takes off the greatest crimes as much as
fury of fatuity, because such persons are
incapable to consent or to adiiibite a free aet af
the will, but there can be no doubt in this mft-
ter if the nature of the libel is conridcrcd^
which is laid against the pannel upon a
requiring malicious and advysed ip
And therefore it is, that oar fiunous k
George M*Kenzic, in his observations
act 2, scss. pari. 1st Charles 3d
for Preservation of his Majestic^s perm v**^
the same ucrds of preaching and malidfV''
advysed speaking, wlitirehy a p?rtj ajhw*"
or declared his treasonable intendnv >" ^
matters by that law forbid is dedand m*"
says, that such as were dnink vba fb^ ^"^
those words, are not punishable Hy cliif «•
lint the pursuer says, drunkaii^' '* ""
Icvautly proponed, because •^ ■■"■*' '^
a!ledgc he was drunk to
deprived of his judgemeot
it is answered, that tbe '
so qualified, because
him is malicious and
any degree of dm
elude, 80 as to
convict upon tbe
insinuation, that
because he
int
X J
le
a
ip.
osi-
^, or
said,
m
1 GEORGE I.
Trial of John Graham and otheri.
going debile thereniwD, Tlicy find the uiJ
Kbtirili oreachof them, thnrdriokiugtrf* king
mes tlie ei(;ht hia health, ordrinking tokicg
James the eight his hnppy lestaratimi, at lite
time labelled, tetmntim, rt-IeraDt to infcrr fen
aiUtrwy pimilbment. And repel] the defencti
nroponed lor the said uaaDells against the said
lybet as mtrictnl, and remitt tbe pannells and
lybell a* fonnd relevant to the knowledge of an
JJiRze.
Sic Subieribilur, Ad. Cockbdrkb. I. P. D.
Sir DaTid Dalrymple of Hailet, hu mqjectie'g
•ilTOCtt for his majeatie's interest. Judicially re-
BIricts lui lybel and caDclusiao thereof 1« an
ai-bhruy paoishmeoL
Sk &ibttribitur, Datid Dalryhpia
Diet coDlianed till next day at 9 o'clock.
FcinMf^ll, 1T15.
John Grahame, AUlander Craa/urd, and
Mr. IVilliam Hog^, inilicted and accuied at th-e
iottaiice of bis roajestie's adrocaie/or his high-
Ma' interest ut in diebut pmcedenlibui.
Sir William Hensies, of Glatdstaines.
Oeorge lind, of Georgie.
Thomas Faicbolm, of Greenhill.
FUrick M'Dowal, tnercfasnt in Edinbur^'b.
John Bell, merchant there,
Jehu Thomion, mercbaDt in EiUnborgh,
John Colqaboou, of Tilliebewn. j
John Martiue, of Litlleeires.
Alexander Waddel of Holliubum.
James KI'Millan, merchant in Edinburgh.
Patrick Gibson, merchant in Edinburgh.
Akxaoder Clark, of Glaadarock.
■ Priogle, of Symin^un.
John HultoD, tueccbant m Edinburgh.
John Lesdy, merchant there.
tbem repeat the ivords, but sat Air' GrahM
putthecsf ti) bi* head, and dnnkoulthedria
Depones, that he nj no wore peraon* dancii
but the paoDelU, but that tjiere were oths
looking on . Cotus tcienti* ptiUt. And thia
the troth aa he shall answer to God, and i
pones he cannot write.
Sic SttbKribitur, An, Cocxbcbne, I. P.]
jl/emn^cr iror^ Bouldier in IhecitjgBM
of Edinburgh, aged (wcuty Etvea yevt, i
thereby, marned, solemnly Eworn, purged m
inteiTugate ut lupra. Depones, That upon d
sixteenth day of December last, betwixt fti
and five a'clock in tbe mnrniDg, he did sea M
Grahame and Hr. Hogg, two of the paonell
dancing niion tbe street wiih Ur. Craw^
-■ ' ■ehau ■ ■ ""
rhyle I
Her Majestie's Advocat and solicitor for Pro-
bation adduced Mr. Crawford's Confeaaion.
Ac also adduced the witnesses atler depODrng,
David Smith, indwdler in Edinburgh, and
chair-carrier there, aged fourly thrtc .years
or thereby, narried, solemaly Bwom, purged
of malice, nreJuJicr, and partial council, exa-
mined and interrogate, depones, That the
month of December last, in a morning hetnixt
four nod fire a'clock, he did see tbe psnnells
Hr. Grahame and Mr. H<^g by the street,
dancing to the hautboys, ann when they bad
donedancing, the deponent saw a woman come
out of a cellar with a stonp, and saw Mr. Gia-
hame take the stoup and a«ap, and fill a drink,
and heard him utter tbeae worda, Here is the
bing'a health, and some other of the company
Mked what king t But the deponent cannot tie
poaitiveby whom, king Jameslhe eights' imjib.
AndbdngiiitanogmleiforiMtbeff^Hr. Gra-
fcuH fli Hr. H<nr pat tbe cap M tbeir beads,
itboys were iilnying, and did si
Mr' Crawford with a dish in bis hand, M
Cranfnrd say.Tbia is the kiug's health, and U
Grahame aiuwered, God damn y tu, what king
and heard Mr. Crawfurd reply, KiogJomeaU
eight, and saw lilm drink the liquor in tfc
dish, but did not bear Mr. Grahatne name tl
heahb of king James the eight, neither bear
any of the pannells name ahcaltl) tothehappi
resturation of king James the eight. And m
mediately tbe deponent went away and left tb
company. Causa tcicnlia, the deponent be
ingupon tbe guard thatnii^bl, happened to b
on tbe street, and heiird end suw as he baa do
poned. And tliii is tbe truth as he shall ut
Hwer to God. And depones he cannot wriia
And fnrder depones that he saw Mr. Graham
have tbe atoup in his band, and fill tlie drink
in tbe dish, which Mr. Crawfurd had in hii
l»nd. Aud this is also llie truth as he sfaali
luiBtrer to God.
•Sic Snburibitur, Gilb. Eliot.
Jamet Malcolm, souldier in the city guards
aged fourty four years, or thereby, manied, so-
lemnly sworn, pucgcd of malice and prejudice,
interrogate, depones. That some lime in ibl
month of December hist, about tour or fin
a'clock in the morning, The deponent saw tbi
three pannelti steniling on tbe high street ol
lidinburgli, near the Trnn, and the said psoneUi
had a cbopine stoup snd a cap amongst tbem,
and the deponent heard Mr. GriLhante thepan-
i^et drinkto the health of king James tbe ei^ht,
t'Ul cannot particularly Icll whether any ol the
had uttered Ibese words, he pointed
It Mr. Grahame. Caum tciealitr, the depo«
:ieot was on the guard tbsl night, nnd was gi^
ng down with a watch coat to one of nil
jiimotades that stood centry near the pUca
.vhere the pannells were. And this is the tratk
la he shall answer to God.
Sic Subtcribilur, 3 ahem Malcolm.
Ja. H'Kcnhk,
.itiKimCBilUaw,aeiieantintbecityguuia
aged fifty yean, or tbaraby, Bairied, aoMBoty
*]
Trial of Major OnSt/m
A. D. 1726.
[SO
mn, jpvgf^ and iDtei/vgate, de|Km8, that be-
iviit bar mod fire in the morDing of some
ter in December last, the deponent was
olM by a oeolioell in the flfuard dour to go
^iwato'Miliis sc|uare, where there were some
padcnKB drinking to the health of kin^ James
the cishi, lod aat the de[ionetit waa at the ^lard
ter, ae beanl some perrons crying, To the
VfiU, »* the iiappy resturation, and immed-
^klrfr tbe deponent went in to bring out a
fvir'sf the foiurd with their arms, and with
itifirty went towanis Milns square, and the
If fledy mnd the deponent and the party
"them, aud seized the pannclls in a stair.
Kienti^ pqtet. And this is the truth as
hi Ml answer to God.
Sk Sutneribiiurf Andrew Castlelaw.
\V. Calderwood.
1W AfSTze ordained to enclose and return
thsicxdict next day at 9 o'clock.
February 13,1715.
£lffBJ|*
JUa Crahamcj Alexander Craufurd^ and
k.lTU/iaia Hoeg,
Ik sud day the persons who past upon the
I^Kof the said pannells returned their Ver-
ity is presence of the said lords, whereof the
Wfettom,
Eoc^BURCH, February 11, 17 J 5.
1Wabo\-e Aaayse ha? iuf; inclosed, did choyse
arl^iliiaoi Meozies, of Glaidstaius, to br their
dasedkN-, and Thomas Fairholm, of Grren-
hAI, tbeir clerk. And hnring considered the
i^luihe i:istuncc of Mr Oavid I)nli-vii)|ilr,
iUula.his innj^stics advocatfor liis liij^hness
>*^-< s^ainst Jolisi (^r.iliamr, Alcxamier
Lnz:jx. lad Mr. Willi-.m Ilopir. pamielis,
<M Lf'Ti: Janice Clerk uud Conniiisstonri's of
ivjfvii.v, their intpiloqiiitor thtT^'in, and de-
;««J:oc) of tiiu witnesses adduced a<rainst the
said John Grahame and Mr. William Hogg
with the judicial Confession emitted judiciaTly
by Alexander Craufiird, all in one voice find it
not proven, that John Grahame or Mr. William
Ho^rg, pannelU, did drink king James the eight
his health, nor did drink to kin:*: James the eight
his happy restoration. And find the Ivbel
tiroren against Alexander Crawfurd, pannel, by
lis judicial Confession. In witness whereof
thir presents are subscribed by our said chaa-
cellour and clerk.
Sic Subscribitur^ W. Menzies, Chancellor.
T. Fairiiolme, Cleric.
After op|>ening and reading of which Vjerdiel
of Assyze, the Lords Justice Clerk and Com-
missioners of Justiciary, in respect whereofp
assoilzie the said John Grahame and Mr. Wil-
liam Hogg, pannells, and dismiss them from
the barr.
Sic Subscribitur^ Ao. Cockburne, T. P. D.
February 31, 1715,
Intran'
Alexander Crawfurd yoongcr, of Manual*
milne.
The liOrds Justice Clerk and CommissioDerf
of Justiciary, havincc considered the Verdict of
Assyse returned upon the 12th day of Febmarr
instant, against the said Alexander Crawfurd,
pannel ; thev in restpecl thereof, by the month
of Charles Riuross, macer of court, fy ne and
amerciate the said Alexander Crawford, in the
sum of 5(;/. sterlinsr, to be payed to his majes-
tie*s rcecivor general for his majestic's use, be-
twixt and the 1st day of July next to come»
and ordain him t(i l)e cLrriud to prison until
he G^ive hoiid and sunificnt caution that hft
shall nir.kf! ) ayment of the said sum in manner
to r« a i d . — Sic Su hsrribi i u r^
A I). Coi;KRi;i{N. W. Calderwood.
Cxii.n. ]-'.i.i(>T. J. Hamilton.
Ja. 31* KlNZIC. I). fc)RMCINE.
*33. The Trial of Major John Oveby,* at the Sessions-House in
the Old-lJailey, before the Right Hon. Sir Francis Forbes,
kut. Lord-Mayor of London, Mr. IJaron Hale, Sir William
Thompson, knt. Recorder of London, and others his Majesty's
Justices, for the Murder of Wm. Gower, esq. : V> Gkorof. L
A. D. 172G.
John Oneby, of St. Martin's in the Fields,
est. was iu'Jicted, for that he, oti the 'Jnd day
if Ft^rruary, IJ C*>o. at the said |farish, felo-
■hhIv, iJluntarily, and ok' his malice fore-
ihsurht, nmlc an ass.-nilt upon one William
, esq. and that he the said John Oneli
*ttk a sword which lie then and there he
* See « Hum. 766. ft Lord lUym. 1485. 1
.n.
drawn in his riGflit hand, the said Willlara
Cj'iwer in and upon the left part of his belly,
near the navel, Icloniously, vulniitarily, and oi
his malice forcthonr^flit, fhd strike and thrust,
^i?in{7 tiic said ^Villiam (iouer, then and there,
with the said dniwn swonl, in and upon his
said left part of his helly. near the navel, a mor-
tal wotind of the lin^tli of one inch and a half,
and of the depth ol' len inches ; of which mor-
tal wound the said William Goner lived io »
313
IS GEORGE I.
TruU of Major Onehf,
I
langpiishiiig condition, from the 2nd day of Fe-
bruary to the 3rd day of the said February ;
on which 3rd day of February, the said Wil-
liam Gower, at tlie parish aforesaid, of the said
mortal wound did die ; and that the said John
Oneby, the said William Gowcr feloniously,
▼oluntarily, and of his malice forethought, did
kill and murder.'*
He was a second time hidicted, on the coro-
ner's inquisition, for the said murder.
Thomas Hnwkint. On the 2nd of February,
between nine and ten at night, Mr. Blunt, the
deceased, the prisoner and myself, went from
Will's coffee- house to the Castle tavern in
Dniry-laiie, where, in about half an hour, Mr.
Rich came to us. After the fourth bottle, the
prisoner called for a box and dice ; the drawer
said, they had none in the house; "Why
then," says the prisoner, ** bring the pepper-
box." The drawer brought it, and dice were
laid upon the table : but I don't know by whom.
We played low, nobody setting abo?e half a
guinea, and yet I had no great inclination to
game, and especially to set the prisoner ; and
therefore, aAer a trifling loss I declined the
play. The prisoner appeared di«|^usted at it,
and aHked me why I refused ? 1 told him I
should use m^ own pleasure, whether it was
agreeable to his h umour or not. The rest con -
tinued playing. The deceased lost SOf. Mr.
Rich said, "Who will set me three half
crowns?" Upon which the deceased took
something out of his pocket, and laid it on the
table, but concealed it with bis hand, and said,
" I'll set ye three pieces ;" and then taking his
hand avray, we saw three half- pence. This
was not offered to the prisoner ; but he appear-
ed to be much affronted. He said, " That is
▼ery impertinent to set three half- pence." The
deceased said, " What do you mean by imper-
tinent 1*" And the prisoner replied, " You are
an impertinent puppy ;" and presently snatch-
ed up a bottle, and threw it at the deceased's
bead, and it beat some i»owder out of his wig,
but did him no hurt. Ue, in return, tossed a
glass or a candlestick, I can't tell which, at the
prisoner; but it did not reach him. They
both rose up together, and went to their swords,
which hung up in the room. The deceased
being quickest, got his sword first, and drew it,
and stood still in a posture of defence, at a good
distance from the prisoner, who was advanc-
ing, and was drawing his sword to meet him ;
but Mr. Rich stepfied in between, and pre-
vented him. Then the deceased threw away
his sword, and they all sat down again, and
drank for about half an hour ; when the de-
ceased offering his h&nd to the prisoner, said,
" We have hsM words, mi^or, and you was the
aggressor; but let us agree." The prisoner
answered, "No, damn ye! I'll have your
Mood I" And then tummg to me, he said,
" Hawkins, yoa was the occasion of this."
•• Why then,^* says I, " if ye have done with
bim, and have any thing to say to me, I am
your inaOf and I'll see yon out.** " No,^ says
be, " I have another chap first." In ala
half an hour after this, which was near tk
in the morning, the company broke op. I it
out of the room first, and Mr. Blunt, and '.
Rich were next after me. When I casBe
the street it rained, and I run under a p*
house, where I stood a little while ; bafc
having a chair ready, and seeing none of"
company come out, I returned to the rc3
where Tlound the deccasetl wounded, and E
ing on a chnir in a languishing c^mdition.
died the next inoniiiig. 1 knew him intiaa
ly, and I don't believe that tliere was a swfl
teniftered man in the world.
John Rich. I, the prisoner, the deoea
and some others, went together te see the
tragedy of Hecuba ; we sa^ io the pit.
deceased and the prisoner appeared to be ^
friends all the time of the p)ay ; and as 80«
it was done I left them ; but met them ib
at the Castle tavern in about half an hour,
prisoner and I called for a box and dice ; im
not being to be had, he called for a pei}pcr—
and it was brought ; I saw dice lying upoK
table, but don't know how they came there
said. Let us play low. Some words pssK
tween the prisoner and Mr. Hawkins. K
down three half crowns. The major set
I threw. Seven was the main, and sis
chance. The deceased put down three J
pence ajgfainst me, and said. Here, I'll sei
three pieces. The prisoner damned liim,
called him an impertinent puppy. Sir, i
the deceased, I am not afraid ot ye, and be I
calls me a puppy is a scoundrel. At Ife
words, the prisoner threw a bottle at bia.
brushed his wig as it passeil, and he in lili
tossed a glass. They both gut up loffelfa
but the deceased being nimblest, jumped on
table, and reached his sw(»i d first ; and tl
slopping down, he drew, and stood ready to
feud himself, but made no offer to push,
the mean time, the prisoner took down
sword and cane, which hung t«>gether;
there lieing the table and a chair bt-tween th
he came round the table, and was going to
gage with tlie deceased ; but I stepped betn
them, told the prisoner, who was drawing
sword, if he made a longe, it must be thro
my body, which, as I was unarmed, wouh
wdful luunler. The deceased then threw a
his sword, and they lioth sat down again. '
deceased put his hand forward, and said, Cc
major, let us be reconciled, words in beat i
be forgot and forgiven. The prisoner ans^
ed, God damn you, you lie — I'll have i
blood, by God! And then, turning to*^
Hawkins, be said. This is all along of ^
Mr. Hawkins answei'cd. Then I am i
man; and the prisoner replied, No, 1 I
another chap to deal with first. When w
got up to go, the prisoner hung his great i
coat upon his shoulderS| and I think butli
it in one or two places. Mr. Hawbios i
out first, Mr. Blunt next, the deceased folk
biui ; I, the deceased, and tbe prisonw c
last : but he was hardly out of the rosniy «
ySr <X* MHrier 'tfWSBiuk Gmtr,
iuD. 1786.
t»
I li lh« tocMd, Htrk ye^ yoaafr
■ift vOTi wi* y«^ The deoettM
lAt ^mj loth re-cnlHcd the room.
r wi wiwrtiitoly tlittt flat IbcNml,
|rfnwiJi^iBd»kwrfitiBp €Q the
■blfWMed Wis mede Irf tbeBri-
llnffaTeiyheftTyiDiui. llr.Biiiiit
■H Mck, and endm?eured to vet in ;
llHiMdily epea the door; hot the
pnfjto our oMitlMice, tre made eo
Uk. Bhmc lliet, and 1 deae behind
kprnwer was then next to the door,
fcfailh hb aword drawn in his right
tflBalsf it heinff towards the deceas-
akMd 1^ the ahoaUer with his left
liUithedeoesard had then no aword
ai,ailsitt I saw none; and 1 soon
ibftsai it dose to the wainseot, be-
ftUtafsfthegreatond table. It was
rifnaqr four or fife inciies from the
H» diemed cloosd with the prisoner ;
khaauusr, as if he rather fell to-
bthnngh wcaknets, than otherwise^
IImhm think the woond was jpvett
pee came in. We pat him mtoa
itm far a smgeon. As I lidd np
hm part them, I felt a littie prielc
ipeiatybj the priaoner'a aword; bat
hws done aoeidentally. Mr. Blant
Miaw dapped his hand on bn bdlj.
hi vaidangmiisly wounded ; bat I
■t hy wbtt mesne. I told the pri-
■iws csaae out of the room* that I
i ha had kUled the deoeaatd ; No,
■j^ have done it, if I wouM ; bat
^fhghted him. But suppose I had
^ 1 know what I «lo in those afl&irs ;
I killed him to-night, in the heat of
ihoald have had the law on my side ;
d done it at any other time, it would
d like a set meetini|^, and not a ren-
I advised him, however, to make off,
the worst. 1 asked the deceased on
lid, if he received the wound fairly P
red, faintly, «* I think I did— but~I
r— what might have happened— if
ioi— come in."
Blunt, From the play we went to
thence to the Castle, where we were
f and triendly, till the dice were
We played low, but Mr. Hawkins
led ; upon which the prisoner said
IThy do you come into company,
won't do aA others do ? Mr. Uaw-
ned. Don't trouble yourself about
» as I please. The deceased set
-pence: the prisoner said it was
ipertiueut; and some other words
' flung a flask at the deceased, who
OKd a glass or a candlestick. They
tworda, but were prevented from en-
4 so they sat down again ; the de-
lod hia hand to be reconciled, upon
priMoer save him very ill language,
m wottlu have his lAood. As this
dve that their quarrel would
IIm nest day, 1 invited the
oompany to dme with aie,la hopcs.lo brioff oa
n recoodfiathm, and nrsvent futnre niienief.
The prisoner answersd my ofler with,- No, God
damn ye, I'll dine with none of ye. Are ye
ngry, £Kr, says I, Bare ye any thing to any
tome r Or me? says Mr. Hansins. Or ooef
saya Mr. Rieh. No^ he had nothhtf to say to
anyoffls. This was aboat two or three in the
morning. And after we were all enme oat of
the room, I heard the prisoner call the deocaied
book ; and they were no aooner got into the
room agam, but the door waa flimg to, with
grsat nolcoee, and I heard the mshing of
swordsi When I got in, which was with maoh
dlffienhy, I did not see that the deeeaaed had
any sword in lus hand, but he waa sinking forr
ward ; and I, by gomg to assist him, received
a wound in my belly, which I was afraid wii
mortal ; bat 1 cannot tril how, or by whom it
was given, though I tbonk it conld not be by th«
deonsed, beoa^ he had no sword ; and be-
sklesy vraa not in a eonditioii to do it. A sor*
geon being in the hoose, gave me his imm9-
diate asristanc^
Mr, SAow, the snrgeon'. I. fhnnd the da>
oiised bngnishmg in a chahr. His intestines
nppsnred attheweand, and by being esposed
to the dr began to mortify. When 1 had
dreised him 1 sent him home ; bat the neil
day I foand a second mntnre of the mtestines.
Hediedsoon aUter; and thai woimd was the
cnnse of his death.
Prnsmr. A wager was Idd bdwixt Mr.
Bioh and Mr. Blunt, concemmg Mr. Mills*i
actittg the part of Caesar m the day of Jalios
CsBsar, and it waa kist by Mr. Blunt. After
this a box and dice were called for, but not by
me; the drawer said he had dice, but no box ;
upon which somebody edied for a pepper-box.
1 flung a main at 12i. and passed it about.
Mr. Hawkins refusing, I said, I thought there
was as good fellowship in a little play, as in al-
together drinking : then we played for half- a-
crown or Ss. ; and when the box came round
again, the rest likewise refused to play ; at
last, the deceased offered to set three half-
pence, which 1 said was very impertinent He
called me rascal ; ** You impertinent puppy,"
says I, ^' what do you mean by that ?" U|)on
which, he threw a glass at my bead, and drew
upon me. 1 told him, be acted basely in draw*
log upon me, when it was he that gave the
affront. Afler this i put on my great coat,
and was croing out. Mr. Hawkins had slipt
away, ana the rest being gone out of the room,*
Uie deceased pushed the door to, and drew upon
me, and wounded roe in the knee, and cut my
finffers. I parried and closed with him ; he
endeavoured to stab me in the back ; at which
time Mr. Blunt came iu, and received a wound
in his belly, which must have been by the de-
ceased's sword.
John Barnat the drawer. I threw the pri-
soner's great coat over his shoulders, as he waa
going out. Mr. Hawkins came out first, and
asked if his chair was at the door ? I said, Yes.
Mr. Blunt followed, and I went down to unbar
1>
S5]
12 GEORGE I.
Trial of Mtgar Oneig,
the door ; tbc rest of 4he company not eomingf,
I weut baokimd met Mr. Riob ; Kebkl me open
the door ; I thou«^t he meant the street-door,
and was turnings that way again ; but be airore
at me, and told me the other door : I opened
it, and went in 6r8t, and the deceaied and the
prisoner were both with their swords m tbeir
tiaudH, pointing towards each other. The de-
cessetl closed with the prisoner in a manner as
if he was rather falling' than pushing ; and the
prisoner with his led hand bad hold of the de-
creased, who, as soon as we parted them, was
BO weak that he could not stand. I did not see
him bleeding when I came into the room,
though I cried out to the prisoner, For God's
sake what are ye doing?
Pritoner. uid not yon see the deceased
ofier to stab me in the -back ?~-jBariief. No.
Mr. Burdet^ a surgeon. The next day in
the evening, the prisoner sent a coach to my
house with a letter for me, intbrming me that be
had been wounded in a rencounter, and desiring
me to come to him. I went, and found him in
bed at the house of Mrs. Gardiner, in Dean-
atreet, near Red-Lion-sqnare, where he had
concealed himself. He had one wonnd beloir
liis knee an inch and half long, another on his
buttock, two of his fingers were cut in the first
Joint, -and he shewed me three or four holes in
his breeches ; but none of his wounds were
above a quarter of an inch deep, and that in liia
leg had but just raised the skin.
Mrs. Ganiiuer, The prisoner came to my
house about two o'clock in the morning: he
was bloo<ly , and upon searching him, I foood a
wound in his buttock as deep as my (inger, and
I dressed it for him.
Court, The evidence is |)lain, that the pri-
soner cave the first provocation ; and it is not
denied, that he afterwards killed the deceased.
The question is, Whether from the time the
prisoner threw the bottle^ to the time the de-
ceased received the wound, there was any re-
conciliation P If there wai nutylthink it can
be no less than murder.
The jury found there was no reconciliation ;
but not bemg satisfied as to the murder, they
agreed npon a special verdict.
The counsel on both sides attending, they
stated the principal points of the evidence for
the consideration of the judges.
Whattlic prisoner's counsel di^ewup, was
lo this efiect :
*< We fiud that the prisoner, the deceased,
and three more wet at the tavern, where they
all appeared very irieuflly. — A box and dice
wefe called for, — they played some time toge-
ther, till Mr. Rich said, W ho will set me throe
half-crowns?— The deceased put down three
halfpence, and said, I'll set ye three pieces.—
The prisoner said^ That's impertinent— 4he
deceased answered, He that says I am imper-
tinent, is a TasGal.^rhe prisoner threw a
bottle, and the decessed threw a glass.— They
both got op, and took tbeir swords ; but one of
the company stepped in, and prevented their
tngagingw— They tat dvwo agam to drioki— >
about an boor, and thao the ^
broke ap. — The prisoner pot an his g
—-They all went out of tne room. —
soner and the deceased returned, the
abut, and the dashing of swords waj
The counsel for the king stated the
to the following purpose :
" We find, that on the Sd of Febr
jirisoner^ the deceased, and three otfa
in company at the Castle- tavern, and <
in a peaceable manner for aboot two
The prisoner then called for a box i
but none beine to be had, he callei
pepper-box, which was brought* — £
found upon the table $ — they played a
—Mr. Uioh asked, who would set fa
half-crowns P The deceased iaajocu
ner laid down three half- pence, a
Ihere's three pieces— the prisoner ca
an impertinent pappy, and threw a
him, which missed lum, but brushed
-^Tbe deceased tossed a glass or candl
the prisoner, which did not hit him
both rose up, and took their swords ;
prevented mm fighting.— They si
a^in.— The deonsed wered to be
with the prisoner ; but the prisoner a
No, Gad damn ye! I'll have your li
God ! — ^In about an hour after this, t
pany all went out of the room ; but
aoner called to the deceased, and said,
gentleman, a word with ye.— They
turned into the room,— the door was i
violence, and the claabing of swords w
—We fiud that iram the time that tl
was flang, to tbc time of the breaking
company, there was no wconciliation.
Tliese two ron^h drauj«hts being o
and some alterations bemg made, al
drawn op, which was agrwd to and a
the jury, and was to this tenor.
Spscul Verdict.
« That u|M>n the Sd day of Fcbmai
the prisoner and the deceased were
pany, together with John Rich, ThoEfl
Kins and Michael Blunt, in a roon
Castle •tavern in Dmry-lane, in the c
Middlesex, in a friendly manner. 1
they had continued thus for two hours,
dice were called for ; the drawer 6ai<
dice but no box ; and thereupon the
bid the drawer bring the pepper-box, ^
immediately did : and tnen the com
gan to phiy at hazard ; and after 1
played some time, the said Rich askei
one would set him three halt^owns P
upon the deceased in a jocular nsa;
down three halfpenny pieces, and the
the said Rich, 1 have set you three pii
the prisoner at the same time set the s
three half-crowns, which the said R
and immediately, after the prisoner in
manner, tnmcd about to the deceased,
It was an inpartinent thing to aet ha
and thai Iho daoeasad ww an
Jlr4(rJIMb<^«HU» Omt.
Araint.
t»
j^lW «>(lamir ; to which the dcFeased
M WborriT caHe^ bim su ivns a
Tta lhrrru[i>)n lh«- saii) .luhn Oni?l>y
IlkNdr, Bnd wilh grrat furc« llirpv it
Mfcf ^rilhelmDfliGowEr;' which
■■M hit the wid Gnxrr, but brushed
llfr.uit pneaei by hi* huid, anil heal
Midi: pnvitrr; whereapon tlie de-
^^diiW; sftrr iMsed ii CHwIlexticfc oi
^1 |int(hcl' JnhBnnirm Olicbj,* hut
Hi biw niib Ihe same : upan which
Bnl ud lb« [insoner both rose up to
^(■Mdt, itiiicb iben htmg tiji in (be
Mlht dcceaied itrpw hit swoni, but
nr MI prevtnlF't' frnm dnwng hit
■fMji ; and Ibe tlpcinfiHl thereupon
tf hk iword, and the compuiy iM«r<
ItjrNtdDHnRcniTiror Ihe spare of n
lilUlheFiEpirittinD oF an hour, lh«
■M to Ihe priMnier, We have had b«t
Ijw i»i* ibe aegremor ; but I think
■titorer; and bt ihesanie time of-
lad Ktlbeiaid John ODcby, lOTrhrdi
ka Oathv nittwerEd, M", damn you,
t t»Hir bitwd. They furtlirr Bod,
WtIs the rtrkoniii^; was paid by Iha
fee pnioDer, Hid), Hawkins and
ll all the company, except the pri'
iMit n( the room ti> g<i hume ; and
Teiuainiiig alotie in the room, called
■Mh>I in these words, Young tna
K I have somettiin^ to say tu yoi
kdie deceased rduraedinto ih* ruoi
Mnlely the door was Ifltmg (u at
Mvcfty the rest of the company we
rvrf then B dstliinr of swords n
■Ifce nrituner, with Tiii sword, g»-
■Md tne mortal wound meDtinncJ
tamt, of which he died the next day.
ttm tml, riwt at Ihe femkbig up of
MaaGglit wmwdi in (heenngement;
tta oeeeiacd bong atked, upon hii
IMUldi
did. llial Ann tin time of
M iba adtioe of tbs Cmrt, ai
womtt hting carried Itack to Newgate,
vaa; M7> "or about a twrirs-motiih,
riMMOD, •sdMgadb»ooiiMMdimH
■i M tha ftDascMtnr bad tahm oa
via hta^Bg m the kaariiig «f the
^Jo, ho fraw prett* coiiHMit tt
r4mmm^ti imm»amer, and ftad
tmmn *• Cnart of Kii^a-beach for
■k ta ha laada liir arnior the tpe-
«Mbi>lbeOaM; wliwhltcioff or-
etMormi frm Htgt ^
Bapoft^ Ml. 9, p.
M#lb« Mlaaw bilMsl *• lai, il WW «■*
kCmm&ui, die Court befaifarMijiint Hut fl
oonM BOt ha aada ■ Cutikim in hia aliaoaea |
■i#J»nkM TavBhWOae, Y, it <MU arnad
WnrtMi &vi^telk»U>ff, an* aajaHl
aanifiwwJi 1« awtor ta MaMM^mhtlklt
m* la Mirfvor MMlauhtais f ataUl ww-
nk» «M wUah ta km- l» ha dMMltd, tIM
afwr wilMaw UUm W wJt, aa2 that
■alfivBH toakhar annaw imlM. fUk
■•^ «iHn toplio« !■ lU a« itadf, Ifnawn
^ - iMapaatMaHaat tlni«WI«
Balhtarh*«arii
AapSawlhMw
■dfthMl—ioft
oAnnMl«adi*at|i»]
«aM' ••■MMfpivMei
■t|i»iaiBl«
BatWwaril
miBMriM»t»*a.wriaff ar datav aC«
IMw b* Mr. ««*«v tW «Mi* ff)w«fcMa
tvttaiitteM: »*»aaib^ •Tbair.pmk
iWi »lblfl» b« wMlid, IbaaAaatiwai la
lb. IMS aa<«at «> Mi. Oncbt, wbaaa bMt
t* MM WHDMMaU aibeud W wbai was
*tolir Mr. ObtTCAr. Aid Aat ilia RMfdvii
tbtodiftiiit, Itkiak caHM hadiapma^
rtw ba MbMBt of tb« (Tawt in Maw-
wMm^ mmt Iban Iba battto thmn br
KpTbk MMi<ib%a, ni Iraba Ua ba^
bwat tba flwdhaUcfc^ ar battle lowad hj> Odwv.
did sat bfttbaipriaaBar el tba bar: that ww
■eonent killing bj
in Bf nwfrid^g «
Id peaev maaihaled byllriOewnv
coMinaance of malioe )»tbe nriaonar flw
afeave an boor alter the fiial confliot. What
waa doM bore hj Ur. Gtower would ban beca
nutiAaUe in him, eten if the caodlealiek had
hit ibe priwoer: aod io it wu restored ■■
HawrMlKe'ieaBC; fbrthere the boUlo returned
by Mr. Cope did hit the defendant, mod broke
bis bead. Aail ai % act done hj Hr. Gower
wia jitrtifiabia in bmi, it follows, that it caa
ba no fcundatton ta exoiwe or mitiffate the «ah>
by Mr. Oneby.' The eeaepi*
" of ansaMnltby A upon B.
ind pimaes A to the wall,
where A in b» own defence kilh B ; this ia
held ntarder in A, thotigh it bu many siTonf
riwuwattuces in flffonr of A, which arenotia
tbia caae. Bat I appreheDd, it i« not necessary
to rIj bately oo this pmnt, that there ia inaiice
iasplied in (be ad i since it plaialy appeara,
upon tboata(cof thocaae, (hat heraisezpreaa
iMliee. When Ibe deceawd waadeairoua te
end (be Battler amieaUy, (he prisoner repfiea,
"Ne, daoHi yoa, I will have your blood :"
this ezphiioB and goea Areufih (he whde fbet,
and pnnea the auhaeqnent failliog to be malt-
I do therefore insist, that takinf; it ather
way, citber as a killitiir out of malice implied,
malice express, i' ' "' < ■• — ■^•-
npoo the Hat ii a killing of malic
aadapoa tbe priswar^ awa worda coupled
SJJJ
12 GEORGE I.
Trial tf Major Oneb^f
D
i»itb the fact, it is m&lice express, and conse-
queiitly murder.
Serjeant Eyre^ for the defendant. The ques-
tion is, what degrree of homicide this is; and I
apprehend it to be but manslaugrhter : the dis-
tinction is, that if the killings be of malice fore-
thought, it is murder; if on a sudden' occa-
sion, it is but manslaughter ; and that I take
to be this case: in 3 Instit. 61 malice pre-
pensed is defined to be, when one compasseth
to kill another, and doth it udato animo : on
the other hand, manslaugliter is the doin^ it
without premeditation, upon a sudden brawl,
shuffliofif, or contention. 3 Instit. 57.
The law has ever been indnlmrent to the
passions of men ; < ira furor bre? is est,' and
therefore as a roadman, the party is excused
for what he does in a sudden transport of
pasRion. I do admit, that bare words are no
provocation ; but yet they will serve to explain
the nature of the combat, and shew whether
it was sudden or not. The calling the prisoner
a rascal, was what no man of honour could
put up ; and as this was the beginning of the
quarrel, the fijc^htinrr was as sudden as the re-
S roach ful words. If the prisoner had stabbed
^Ir. Gower, upon speakmg the words, and
Gower had done nothing, I believe it would
have been murder ; but here was a regular
tight, an interchange of blows, and so it comes
up to the case put in Kelyng o5, of a combat
1»etween two of a sudden heat ; where if one
kills the oilier, it is but manslaughter.
The law has fixed no certain time, when it
shall be presumed the passions of men arc
cooled. The case in 12 Co. 87, must take up
a longer time than this ; fur there the boy ran
three quarters of a mile to his father, and told
his story, and after that the father provided
himiiplf with a cudgel, and had as far to fro
in pursuit of the other boy ; and there is this
ditference between that case and the case
at bar ; that there the adversary was out of
sight, but here he continuc<l in presence,
which must rather inflame than abate the
passion.
I'he words made use of by Mr. Gower carry
an imputation on Air. Oneby, which migKt
provoke him afresh ; the tellmg him, he was
ihe aggressor, was not likely to make an end of
the quarrel : and that is plain, from the manner
in which Mr. Onehy understood them, who
would never have said so harsh a thing to his
friend Mr. Gower, if he had l>eeo at that time
in an^' degree musicr of himsell*.
It is not ibund by the verdict who began,
after Air. Gower returned into the room : it is
not likely the prisoner began, because he hail
his great coat thrown over \m shoulders ; and
as to the shutting the door, it is stated to be
done immediately on Mr. Gower's returning,
and is likelier to be done by him that came into
the room. When the first conflict happened, it
appears Mr. Gower was the readiest to draw
his sword; it was actually drawn, and Uie
priaooer'i was not ; and lince it ia not italadi
who drew first the second time, I think itoog
to be explained by the first.
To make it murder in the first instance,
must be done with a weapon that wouki m
danger life. The bottle in Mawgridge'a a
was full of wine, and it hit him (Cope) sa m
lently, that he never spoke more. But fbrs
thing appearing upon the verdict, this am
be onl^ a small oil- bottle, usually set v^]
tables m pnblic-boujies; and might perhapa
empty before it was flung. The case of
Turner, which is taken notice of in Comb.4i
was held manslaughter upon this
cause the clog was not such an i
from a blow with which it was Ukelj
should ensue. But supposing the bottle
be as big and as full as Mawgridge's '
jfet no harm was done by it here, as tbcra
m Mawgridge's case. Here was no dra^
the sword eo instante^ as Mawgridge «
which occasioned the judges to lay th^
turning the bottle by Mr. Cope out ot the ^
and construe the immediate drawing
sword, as an intent to supply the miacft
which the bottle might fall short of; ande"^
in that case, one great man difi*ered from
rest of his brethren. — So that Mawgriilc
case is materially difl*erent from this. Tti
the intention from the first throwing the bo(
was to commit munler, here it was othenri
There the first boUle hit, here it missed. Th
the murderer's intent was immediately earn
into execution, here was a long intermplil
The deceased needed not have returned, if I
baii not been equally disposed to combat; ■
he himself said it was a fair combat, wUi
there was no pretence to lay in Mawgridp
case.
Serjeant Darnall replied. The words on bi
sides must certainly be laid out of the case;
not, puppy was worse than rascal, because
is the name of a beast. If Mr. Gower ti
Oneby to be the aggressor, the condescend
was greater in him ; it is no more than say fa
I, who have been injured, am ready to pasi
by. I do not find it was at all reiie<l upon
Mawgridge's case, that the bottle was fu
and as to the case in Coinberbatch, Tumc
servant there had committed a fault, for wh
he was liable to be c(>rrecte<l : the decease
declaration was only that he received i
wound by a fair push.
The Court sniil nothing upon this arguroc
but appointeil another to oe before all
judges of Eugland. And in Easter term 1
k)wing (May 6), it was accordingly argued
Mr. liCe fur the king, and Air. Kettleby (i
, jeant liaynes, who was rvtaiiu-d, being ill)
the prisoner, to the same efl*ect as the fore
argument. Str. vol. 2, 770. Tlii> prisoner
being present in Serjeants-inn (ChaiictTy-lai
a& he was in court u|)on the first argumei
this last lieing only tu have the advico of
other judgtti
/sr Iht Murder nf WiHiam Comer. A. D. 1726. [42
i-allfil htlf-erotms; ifaai thereupon Ihe said
William GoivFr, in n jocular raatiQer, lel tbree
piccRS "f money, cnlkil li(lt-|ieiice. Boil then
ni J to th« saiti J'jhn Rich, ihat h<' hud set him
ibrer piecM ; that ilie solil John Ooeby, ul ihs
same time, kcI tbe saiJ John Ricli tlirce hnlt-
crowDs, nhich the Eaid Jobn Rich won; and
imn»>(1ialely the <uiil John Oneby, in an angry
manlier, lamed to the said William Goiter,
and BBid to him, that it was an impertinent
tliini* to H-t balf-ppnee ; snil I'urther anid lo the
said William Gower, that he, ihe laid William
Gower, was an impertioeni \>up\>y in sodoiog;
lo which the said Witlinm Gower then and
there answered, that whosoever culled him to
rascal; and thereupon the laid Juhn
Oneb; tnoL up a ^lans biiitle, and wiih i;reBt
force threw it at the said Wilham Gower ; but
the glasa boHie did oot strike Ihe said William
Gower, hut passing by near his heail brushed
* 'a nemlce, which he llien had upon hii head,
id btat out some of llie powder out iif hii pe-
ike ; that thereupon the said WiUiHin Gower,
immediately aiier, loase d a g\n%s nr <'andleslick
at the said John Ooeby, but the iflant or cau-
dlestick did not hit the said John Onehv, iiuun
which, both tlie said John Oueby and Wilham
Gower jiresenllv rose fruin their aeals, to fetch
their swords, which then bung uii in the room ;
and Ihe said William Gower thro di-ew hi*
Bword out of the soahbard, hut the niiid John
Onehy •cat hindered by olheri of tbe cumpany
from drawing hisNimrd nut ol' Ihe scabbani ;
whereupon the inid William Gower threw
away hia sword, and iiy the interpoiitioo of tbe
■aid Jobn Rich, ThomaH IUivLiuh, and Mi-
chael Btiinl, tbe smd Wdlinin Gower and John
Oneby «Bt dnwn 8);^iii, uU'l beutg so set iliiwo,
contiuueii lor th>' Etiiucc uf an hour, in company
with the said Juhn Rich, Tliomaa Hawkioa,
and Michael Blunt ; ihat after the cxpiraiion
of thai hour, the said William Gower said to
the said John Oiieby, We have had hot worda,
but ynu waa the aggressor, but I think, we
may iiasi it over ; and at Uie same time tha
■aid VVilliam Gower offered his band lo the said
John Oneby ; to which the said John Oneby
then aoswcreil the said William Goner, No,
damn you, 1 will have your blood ; Ihat atter-
wardc Ihe reckoning was paid by the said John
Oneby, VVilliam Gower, John Rich. Thomas
Hawkins, and Michael Blunt; and tluit th«
Eaid William Gnwer, John Rich, Tbomaa
Hawkins, andMichael Blunt, went out of the
said ninju, with an intent id go home, leafing
the said jobn Oneby in Ihe room ; thai Ihe
said John Oneby, so a<i aforesaid, remaining in
Iherooiu; called to tbe aaid William Gnifer,
Young man, come back, I have something ID
say loyou; that tliereu|HJn Ibe Siiid Wdbam
Gower returned into the aaid room, and tba
door nf tbe room was unroedialely flung lo, and
shut ; by reason ol which shulting of the door,
all of the said company, besides the said Wil-
liam Gower and Jobn Onehy, were shut out of
Iberuoin, and thai llien alter ahuiline of tba
door, a clashing of sworda was heard i tbeu
tm, tS Gm. 1, and 1 Geo. S, 1TS7.
XfoaJiy, Jitnt 11.
t/bf being brought to tlie bar froin
\t»i the resolution of the Court,
Raymond* delivered ihe npi-
jadges, in the folloniug manner,
KlSR Mrl. Jons OlSEBY.
tanal sessioiis of the peace, held
lall, for the county of Midillesex,
Fdwusry, in the 13th year of bis
ip], John On^y. of St. Martin's
I, ttot, was indicted, for that he,
■1 February, 19 Geo, al the said
■iouily, foloDtarily, and of bis
Rlbanghi, made an aasaull upon
Goner, e*q. and that he the said
iritb a sword, which he then and
'diawD in his right hand, the said
in and upon the lel^ part of
.be navel, lekiniously. volun-
tf his mabce fore'lhoushl, did
thrust, giving the said William
~ and there, with Ibe aaid drawn
upou bis said left part ot* his
e (tare), a noortal wound ; of
wound, the said William Gower
iwliing condition, from Ibe aatd
'cbruary, to the Srd day of tbe
■ nid mortal wound, did die ; and sn
>4kd, Ihat the said Oneby, the said
fcfe)ollioully, Toluniarily, and of
thought, did kill and murder.
Icment being delivered to the jus-
r delivery for Newgale, Ibe said
was arraigned thereupon, aod
Guilty. And u)Miu the Trial.
id belore Mr. baron Hale, and
tTbompson, reconler of London, the
■Im special verdict lullowing, viz.
llw said Joho Oneby, and the snid
>«w«r, together wiih John Ricli,
lawkiiM, and Michael Blunt, were in
iQgrlher in a room in (he Gastle la-
e parish ofSt. Martin's in tbe fields.
J manner ; that after the saiil John
iatn Gower, Jobn Rich, I'hoiiias
and Michael BInnI, had continued
I ibe saiil room, lor ihe space of two
>K and dice were called for; where-
drawer aaid, that he bad dice but no
llul thcreu|Hin Ihe said Juhn Oneby
«! ihe drawer In bring a pepper-hox,
hogly a pepper-box HHil dice were
Ihal milled lately after, tbe said John
HUam Uuwrr, Julm Rich, Thomas
•nd Michael Bluul, began to gday
nod after Ihey hod played hall :
Mid Jobn Rtcb B«ke<l, il any of (he
Mold *H him three pieces of money,
■ 3,
43] IS GEORGE L
the jury find, that the said John Onebj gare
the said William Gower, with his swonJ, tho
mortal wound in the iDdicttnent mentioned, of
which he died ; but they further find, that at
the hreafcing up of the company, tlie said Joho
Oneby had his great coat thrown over his
shoulders, and that the said John Oneby re-
ceifed three small wounds in the fighting with
the said William Gower, and that tliesatd Wil-
ham Gower being asked upon his death-bed,
whether he the said William Gower had re-
ceiTcd his wound in a roanoer among swords-
men called fair ? answered, I think, I did : and
they fuither find, tliat from the time the said
John Oneby threw the glass bottle at the said
William dower, there was no reconciliation
between the said John Oneby and William
Gower : and whether this is murder or man-
slaughter, the jury pray the advice of the
Court: and if,oec.''
So that the question upon the special verdict
is, whether John Oneby, the prisoner at the
bar, is guiltv of murder or manslaughter?
A great deal of time was spent m drawing
up this snecial rerdlct ; for although the trial
at the Ola Bailey was in the beginning of hist
Blarch was 19 months, yet the record was not
removed into this court, 'till Hilary term last,
towards the end of which term, it was argued
by counsel on both sides ; and another argu-
ment beincjr desired by the counsel for Uie pri-
soner, we thought it proper to desire the opt-
uion of all the rest of the judges ; and for that
purjiose, it was argued berore all tho judges, at
;sterjeant'8-inn hall in Chancery-lane, upon the
6ch day of May last, which was as soon as all
the judges could meet, by reason of the inter-
vention of the circuits. And at\er mature con-
sideration had upon a meeting of them, they
uriaiim gave their opinions, and came to this
resolution unanimously, not one of them dis-
senting, and which 1 nave authority from them
to declare, viz.
That John Oneby, the prisoner at the Iwr,
npon the facts found upon this special verdict,
is guilty of murder.
Without entering into a nice ezaminatbn of
the several definitions or descriptions of mur-
der, as they are found in the old law-books, as
Bracton, Britton, and Fleta, where the wicked-
ness of the act is aggravated by the circum-
stances of secrecy or treachery, murder has
been long since settled to be the voluntary kill-
ing a person of malice prepense; and that, whe>
ther it was done secretly or publidy. 8tanndf.
PI. Cor. 18, b. S Inst. 54*
But then it must be considered, what the
word malk;e in such case imports. In com-
mon acceptation, malice is took to be a set-
tled anger (which requires some length of
time) in one person against another, and a
desire of revenge. But in the lenl accepta-
tion, it imports wickedness, whicn includes a
circumstance attending an act that cuts off all
cicase. By 35 H. 8, o. 3, ibr taking away
dergy, it is enacted, That every penon who
•hnll ne indictMl of the erina ttenin men-
Trial of Major Oneby^
tioned, and thereupon arrugned, and si
mute, of malice or of frowaraiiess of xm
shall lose the benetit of his dergy. Nov^
that place, malice can never be understooc
the vulgar sense; for the party cannot
thought to stand mote, out ot a settied asfl
or desire of revenge, but only to save himSH
and therefore such staiHling mute, and reAw
to submit to the course of justice, is said tfl
done wickedly, i. e. witliout any manner of*
cuse, or out of frowardness of mind.
Tliis malice, an essential ingredient to ma
the kilUnff a peraon murder (to use Ike eipp
sions of lord chief justice Coke, and lord 4l
justice Hale, whose authority hath estabU
them,) must be either implied or express ; i
says Hale, in his Pleaa of the Crown 44, t
implied nuilioe is coUeoted either from the m
ner of doing, or firom the person slain, or i
persoiTkilliog. As to the two last, there in
occasion, at present, to take them into oon
deration.
1. As to the first, viz. firom the maMiei
doing, as Hmle expresses it, or as Holt, ehi
justice (vide Mawgridge*s case poiUa) m
firom the nature of the action : 1. Wilfiii
poisoning any man implies malioe. S. U
man doth an act, that apfwrently must d# bar
with an intent to do harm, and death easm
it will be murder. As if A runs with n hsn
used to strike, amongst a multitude of peop
and the horse kills a man, it will be mesdi
for the law implies maKoe firom tlie nataie
the act. 3. Killing^ a man without a provoi
tion is murder ; as if A meets B in the sirs
and immediately runs him through wtlli
sword, or knocks out his brains with a hai
mcr or bottle. And if angry words had pe«
in thai case between A and B, yet it wm
have been murder in A, becauKe woi-da are i
such a provocation, as will prevent such e I
mioide from being murder; lord Morie;
case, Kelynge 5Q*. 4. The law will imj
malice from the nature of the original aetii
or first assault, though blows pass between t
parties, before the stroke is given, which ooi
sions the death. As if npon angry worda
abusive language between A and B, of a sudd
A, without any provooalion (for aogry woi
or abusive language in snch a case is look
on as none), draws his sword immediately, n
makes a pass at B, or strikes at him with ai
dangerous weapon, as a pistol, hammer, lar
stone, &c. which in all orobability might I
B, or do him some great oodily hurt, and tb
B draws his sword, and mutual |>aKses i
made, and A kills B, this will be murder, i
the act was voinntary ; and it appears fn
the nature of it, that it was done with an i
tent to do mischief; and therefore since in ;
probability it might have occasiooed B's deal
or dona liim some great bodily harm, the li
implies malice prepense ; and the resistance
passes that vrere made bv B, were but in ti
defence of his person, which was violently ai
« Seevd. 6,p.7a»eftUiCoUectinB.
lii^tvv bMB carried before. 9. That
■tteraned with the onaDimoiis opi-
MIlfcelheB jadget, for one rerj great
fifcelheBtwelfe, viz. lord Trevor, dif>
m the other judges, and held it was
■Auirhter. fiitt opoQ our meetincT to
ef Aia prcaent case, all the judges
mdj agreed, that Mawgridge's case
med lair f , and that that judgment
te and jast judgonent, so groundless
iHiaiiatioDy which had ^en made
ao miouatioD there was) in West^
mH, that same of the present judges
ipaioo, that the judgment in Maw-
aaa was not a legal judgment,
lia is aa naoch as is necessary, rather
I is necessary, tocbe said as to im-
i0i^ ainoe there will be no occasion in
la kok out for malice implied,
ioa ncpreas is a design formed of tak-
aaollMr man's life, or of doing some
la BBoiher, in the execution ofwhic^
And this holds, where
p ia Bot foTVied against an^ particu«
if as if A^ having na particular ma-
person, comes with
naalatioo against all opposers ; if the
ImfM, mad death ensoe, it is murder.
tacoauMt a riot, to enter iato a park,
B% case, H. P. C. 47. Moore 86, Sar.
FA fMa with a reaolotion to kill the
he aaals, and meeting B, kills him,
lar wiA exjpnas maKoe : yet A had
wi mmf mahce minst D, nor a^nst
iiaon, Hach more it will ba
F,~ when4ie mischievons design is
at anj particular person, which
•vidmit,aB well hj mmmstances
I gpiaas dedaratiana of the per-
V
Eve him no provocation wliatsever ; for when
r. Gower set the three halt- pence, he set
them against Mr. Rich, and that in a jocular
manner ; tlierefore that was no affront to Mr.
Oneby. 2. Upon that Mr. Oneby turned to
Mr. Gower in an angrv manner, and g^ve him
abusive language, and called him impertinent
puppy; the answer of Gower was not im-
proper, nor more than what might be expected,
that whosoever called him so was a rascal.
3. That as Oneby had before begun with
Gower, by giving hire abusive language, so he
then took up the glass-bottle, * et magnll cum
?i,' threw at Gower, and beat the powder out
of his peruke ; if it had killed Gower it had
certainly been murder; upon which Gower
tossed a gloss or candlesticK at Oneby •* And
the difference of Anding in the special verdict
is observable: Oneby threw the bottle at
Gower, * magnft cum vi;' Gower only tossed
the glaoa or candlestick at .Oneby. 4. Whan
they fetched their awords, Gower did it only to
.defend himself; for tba verdict finds, that
though Gower drew his sword first, jix the
prisoner at the bar being hindered by the com-
pany from drawing his sword, Gower there-
upon threw his sword away. 5. By the in-
lerpoaition of the company, the prisoner at tba
imr and Mr. Gower sat down again, and con-
tinued in company for an hour ; after which
Mr. Gower said. We have had hot words, but
yon was the' aggressor, but I think we may
pass it over, and offered his band to the pri-
soner ; that the priaoner at the bar was the
jggressor, is true, and that in a violent manner :
Tlua was sufficient to have appeaaed Mr.
Ond>y: hot what is his answer r No, damn
yoo, I will have yoar blood. There ia an ex-
I pnsa declDration of malice, an express de-
O A.t
47] 12 GEORGE I.
room ; that the prisoner remaioioi^ in the
rtyna, called to the said William Giiwer.aaviogf,
<* Yuunt; maa, comeback, I have aometliiDK' to
say to }-0H." Tltene word* also shew a plain de-
Jiberaliofl ; and l>ciiig' attended with tbedrcum-
ataoces tuiiud tiefure, and what foltowa imnie-
dialely, import c»n tempt; ** Youn|r man" are
insolent and impmous, and ** Come back,'' im-
port a re»<;ntmc'nt he had conceived aniust Mr.
Gower, abriut which he had somethin{|^ to say
to him. For what purpose did the prisoner
stay, after all the company had left the ro(rm
to go home? It was to say something to Mr.
Gowcr. What is that? Wliy, as soon as BIr.
Gower is returned into the room, the door iras
immediately flung to and shut, and the rest of
the company shut out; and then after shutting
die door, a cla-shing of swords was heard, and
the prisoner gave .Mr. Gower the mortal wound,
of which he died.
These immediate subsequent facts shew,
what it was the prisoner had to say to Mr.
Gower ; it was to carry the malicious design,
be bad bHbre declared he had against Mr.
Gower, into eiecution, viz. to have his blood ;
and be had it, for be gave him the wound of
which he died.
To go further: If the prisoner had malice
against Mr. Gower, though tfiey tbuglit alter
the door was shut, the interchange of blows
will niake no diflerence ; for if A has malice
against B, and meets H, and strikes him, B
draws, A flies to the wall, A kills B, it is
murder. H. F. C. 42. Kelynge 58.
Nay, if the case had been, that there had
been mutual malice between the prisoner and
Air. Gower (which does not appear to have been
on tlie part of the deceased)* and they had met
and fought upon that malice, the killing Mr.
Gower by the prisoner had been murder.
11. P. C.47. 1 Bulstr. 86, 87. Hob. 121.
Crompt. 21.
The jud^ were all of opinion, upon the
ftcts found m this verdict, there appeared to be
express malice in Oneby against Mr. Gower ;
and then Oneby killing Gower, having such
express malice against him, they were all una-
Dimous, and clear of opinion, that this was
plainly murder.
Having thus mentioned the reasons, upon
which we ground this present resolution, 1 shall
next consider, if any of the objections made
by the counsel for the prisoner are in answer
to these reasons, or take off the force of them.
The counsel i'or the pri«Mier, Mr. Oneby, in-
sisted, that upon the whole verdict, the* case
was no more than that from a slight occasion
passionate words arose, mutual reproaches
passed; the quarrel was sudden, mutual as-
saults were made; and on a sudden figliliug, in
heat of passion, the prisoner killed the de-
ceased, which can be uo more than man-
alaiiflhler.
That such fact could amount to no more
* The verdict implies the contrary: Fur he
•ffarad him his handy te. Fifrmcr "EdUuM.
4
Trial of Major Onebyt
than manslaozhter ; they cited the known c
that if A and B fall out lipon asiidtten, and L
presently aji^ree to tight, and each fetches
weapon, and go in to the tit-Id and fight, and
of them kills the other ; this is but maoaiaugfc:
H. P. C 48. 3 Instit. 67, because the pas^
was never cooled.
In this case (said they) it is plain the tp^
arose on a sudden ; Mr. Onebv's passion
raised, and that it is not founcf by ttie jur^
have ever been cooled; and therefore
words 3lr. Oneby spoke. No, damn yoiB
will have your blood, Nc<r. were only wordm
heat, spoke under the continuance of the ■
passion. And they further insisted, that
law hail fixe«l-'no time, in which the pasm
must l>e took to be cool ; but that depemn a .
circumstances, of which the jury are the pre
judges. In this rase, the whole time ■
passed, between the f|uarrel, and giving
mortal wound, was but little more tban
hour; and it has been adjudged, that the p
sion shall not be took to be cooled in very c
that time. 12 Co. 87. Cro. Jac. 996. H.
C. 48, Rowley 's case, where the child oT
beat the chiUl of B. B's clnld, all bk>ody,
home to his father ; B, the father, ran tla
quarters of a mile, and beat the child of A ;
means whereof he died : This was adjudged
be only manslaughter ; yet there must ha
been a considerable time after B was provok
by the usage of his child before he killed A
child, because he ran three quarters of a mill
yet it lieing one continual passion raised ia 1
upon tbe boating of his child, it was held ll
was only mansUiughter. And in this preM
case, to shew the passion of Mr. Oneby, wUi
was suddenly raised, was not cooled, thu cou
for Mr. Oneby observed, tliat the jury had c
Kressly found that there was no reconcilialii
etween Oneby, the prisoner, and Mr. Gowi
the deceased, from the time Mr. Oneby ii
threw the bottle.
This 1 take to be the chief objection, up
which the counsel for the prisoner principal
relied.
In answer to this objection, I must first ta
notice, that where a man is killed, the law «
not presume that it was upon a sudden quarr
unless it is proved so to be ; and therefore
Lcgg's case, Kelynge 37, it was agreed, up
evidence, that if A kills B, and no sudden qui
rel appears, it is munler ; for it lie^ upon t
party indicted to prove the sudden quarrel.
In the next place, from what I have aaid I
fore, it ai)i»ear8, that though a quarrel was sc
den, and mutual fighting before the mor
wound given, it is by no means to be to
as a general rule, that the killing a man «
be only manslaughter. It is true, if i
proaeht'ul language passes between A and ,
and A bids B draw, and they both dn
(it is not material which of tliem dra*
first,) and they both fight, and mutual |iaai
are made, death ensuing from thence will
oolv manslaughter, because it was of a sudd«
and each ran the haiard of hit lift. But tin
fir ike Murder of miUam. Gc^^r.
A. D. me.
m
fe difi^Knce between thai caie, and
ifHi words A drawa his sword, and
. pMS at B, or with some dangerous
aitacb him, and then B draws, and
ki, and A kilb B ; there, though there
isrel npOD abusive language, and there
crvirdt a mutual figlitiug, yet since
fai B with a weapon or instrument,
■gll haf e taken au ay B's lite, though
■^afterwards, that*will be murder.
iiiwu agreed by all the judges in tbe
fcrtbe argument's sake, and it is only
HKDt'siake, and to give the objection
}j Ike counsel for the prisoner its full
if ii shuuld be looked on here, that
kmd io the former part of the verdict
■ a turideo quarrel, and only the effect
Bi; yet, if it appears upon the special
ibt Ibere was a sufficient time jior this
• eool, and for reason to get the better
mport of passion, and the subsequent
r deliberate, before the mortal wound
ikillJiigof the deceased will lie murder.
dufjiMges were of opinion, that, upon
ioB of the facts found, it appeared,
hesn sufficient time for Mr. Oueby's
rf pasition to cool,* and that he bad
I; and that the killing of Mr. Gower
boiie act, and the result of malice
J bad conceived against the de-
wf 1 nsentlon their reasons, I must
this proposition, to which they all
!. that the Court are judges of tbe
i not tbe j iry ; and that the Court
dges upon the facts found by the
ler if the quarrel was sodden, there
Tibe pasMuii to cool, or whether the
iberate or not.
le trial of the indictment, the judtre
jury thus.f If you believe such
witnesses, who have sworn such
acts, the killing the deceased was
* prepense express, or it was with
ied, and^ then ^ou on^^ht to find the
ilty of murder; but if }ou do not
ie witnesses, then you ought to find
of roan^^lallghter only ; uiid so ac-
he nature of the case, if you }>elievc
uch facts, the act \)ns dohhcrute,
erate ; and then you ou'^ht to find
And the jury may, if they thiuk
'e a general verdict, either that
r is (rnilty of murder, or of inan-
But if they decline giving a general
i wjU tiod the farts specially, the
form their judginf^ut from the tacts
•ther tliere was malice or not, or
e fact was done on a sudden trans-
ioBy or was an act of dehbcralion, or
ach'a Hawkins's Pleas of the Crown,
Lbl.s. S2.
I, see the judgment of Lawrence,
le of Dftriufbire v. Parker, 0 l^ajit ^.
VIL
Attliougb there are many special vierdicts in
indictments for murder, there never was one^
where the jury find in express terms thai
the act was done with malice, or was nol
done with malice prepense; or that it was
done uiion a sudden quarrel, and in trans*
port of passion ; or that the passion %vae
cooletl or not cooled ; or that the act was de-
liberate, or not deliberate : but the collection of
those things from the facts found, is lefl to tbe
judgment of the Court. Hollo way's case«
Palm. 545. Cro. Car. 131. W. Jones 198w
So in the case cited by the counsel for the pri-
soner, Cro. J ac. 1296, tlowley's case, the jury
find tiie fact, but don't find in express termS|
tliat the father, whose child was beat, killed the
other child in a sudden heat of passion ; but that
was left to the judgment of the Court, upon tht
particular facts found.
But then it is objected, that the law liai
fixed no time, in which the passion must ba
supposed to be cooled, it is very true, it hav
not, nor could it, because passions in some per*
sons are stronger, and their judgrroents weaker^
than in others ; and by consequence it will re-
quire a longer time in some, for reason to get
tne better of their passions, than in others : but
that must depend upon the facts, which shew
whether the person has deliberated or not ; for
acts of deliberation will make it appear whe-
ther that violent transport of passion was cooled
or no.
But thus far the resolution of the judget
have already gone ; and it has been adjudged^
that if two tali out upon a sudden, and thoy ap-
point to fight next day, that the passion by
that time must he looked on to be cooled ; and
in suoh casey if they meet next dn}', and fight,
and the one kills the other at that meeting, it
has been often held to he murder. Hale P. C.
48.
To go a little farther. If two men fall out
in the morning, and meet and fight in the af-
ternoon, and one of them is slain, this is niur>
der ; for there was time to nlluy the iioat, and
their noeeting is of malice. So is Loggia case,
Kelynge 27.
At the meeting of all the judges, before lord
Morley'b* Trial by the i>ecr8, for the murder of
one Hastings, they all agreed, that if upon
words two men grow to anger, and atlerwards
they suppress that anger, and thru fall into
other discourse, or have other diversions, for
such a reasonable space of time a J in reasonable
intendment their heat might be cooled ; and
some time after they draw upon one another,
and tight, and one of them is killed ; this is
niurdtr, because being attended with such cir-
cumstances, it is reasonably aupposed to be a
deliberate act, and a premeditated revenge ufion
tbe first quarrel. But the circumstances of
such an act being matter of fact, the jury are
judges of them, Kelynge 56. The ineanins- of
which last words is,*<hat the jury are judges of
the facts, from which those circumstances are
mm
•w«a«*a<w
£
* SceVyi.o, p. vry.
51]
If GEORGC I.
eollecfeil. But, ai I nid before, wlfcn Hioie
Acts are foomi, the Court n to jodge from
them, whether they do not sbeir the act was
deliberate or not.
liOrd Mnrley upon his trial by the peers
was acquitted ; and aAer that, \n Easter terra,
18 Car. 2, Broomwich, who was indicted as a
priucipal, in being present, aiding, and abetting^
lord Moriey, in the murder of Hasting, was
tried at the Ring's-bench bar. The quarrel
was at a taTem ; but it was proved, when the
quarrel was at the tavern, that lord Morley
said, if we fight at this time, I shall have a
disadvatitage, by reason of the height of my
shoes ; and presently afler they went into the
fielrfs, and fooffbt ; lord Noriey killed Hast-
infB : hot while they were fighting, Broom-
wich made a thnist at Hasting^ and lord Mor-
ley closed in with Hastings, and killed him ;
and (siEiys the book) this was held as clear evi-
dence of their intention to fight, when they
went out of tlie taveni ; and the quarrel being
only about words, and fighting in a little time
after, it was held nurder by all the Court. And
there need not be a night's time between the
quarrel and the fighting, to make it murder,
but such time only, as it may appear not to be
done on the first passion; for loro Morley con-
iidered the disadvantage of his shoes ; and the
Court directed the jury that it was murder in
Broomwich, beinff present, and aiding; but
the jury acquitted him. 1 Sid. 277, reports
the same case, and say^, that the Court, in the
direction to the jury, laid it down, that after the
provocation in the house, they say, this is no
convenient place (and so have reason to judge
of conveniency), and appoint another place,
tliougli the finrlit is to be presently : this b
murder, for uie circumstances shew their
temper.
In ri. P. C. 48, if A and R fall out, A says
lie will not strike, but will give B a pot of ale
to t<mcli him, B strikes, A kills him ; murder.
Two quarrel ; the one savs, if you'll go into
the field, I will break your head, aud there one
lulls the other ; murder. Crompt. 95, p. 49.
Two fall out on a sudden in the town, and they
%y agreement go into the field presently, and
one kills the other ; murder. Crompt. 23, fol.
SI.
From these cases it appears, that though the
law of England is so far peculiarly favourable
(I use the word peculiarly, because I know bo
other law that makes sudi a distinction between
murder and manslaughter), as to permit the
excess of anger and passion (which a man
ought to keep under, and govern) in some in-
stances to extenuate the greatest of private in-
juries, as the taking away a man's life is ; yet
iu tliuse cases, it must be such a passion, as fbr
the time deprives him of his reasoning facul-
ties; fur if it appears reason has resumed its
office ; if it ap|iears, he reflects, deliberates, and
considers, liefore be gives the fatal stroke,
which cannot be, as long as the fury of passion
continues; thekiw will nojonger, under that
pretext of pasiiou, exempt him from the pu-
IVJU tfMaj&F Oiufyt
mhnient, which fhmi tlie greatne« o
injury and heinoasnesa of the crime be .
deserves, so as to lessen it from murder to
slaughter. Let us see, therefore, whether
this special verdict it appears that the fis
and killing Mr. Gower was only done \i
of {lassion, or was a deliberate act. By
I obeerved before, it plainly appears it was
liberate act. But to recapitnhite in short ;
the words had passed, and the bottle wastt
by the prisoner ; and swords drawn ; b
interposition of friends they sat down, an<!
tinned in company for an hour (a ream
time under those circumstances for the pi
to cool) ; and afler that hour expired, tl
ceased says. We have bad hot words, bu
was the aggressor ; but, I think we ma]
it over ; aud at the same time offered hii
to the prisoner, which was enough to hai
peased the prisoner : To this Mr. Oneb;
swered, No, thimn you, I'll have your i
words expressing malice, not passion : '
when the company went out of the root
prisoner stayed, and called the deceased I
Young man, come back, 1 have somethi
say to yon : The door immediately was
clashing of swords was heard, and the dec
received the morul woand from the priso
the bar. The prisoner's words shew, wbi
his intention, vis. to take away Mr. Oc
life ; and the kilNiig htm may properiy b
to have been done upon deliberation anil
sideration.
The counsel for the prisoner in their
ments insisted, that there were severs
cumstances found in the special verdict i
vour of the prisorier, which were a foun<
fbr the Court, to construe the other expre
to be ofdy words of heat ; and that what I
was in the heat of his first passion, whic
never cooled, and not out of malice.
It is found, that at the breaking up of the
pany, Mr. Ooeby had his great coat tl
over his shoulders ; from whence it woi
a strain, to think he then intended to figh
Mr. Gower. 2. It might be Mr. Gowe
shut the door, who came back after he wi
of the room, the jury not having fbun4
shut the door. S. That it was found,
was no reconciliation between them, froi
throwing the bottle at Mr. Gower. Bui
the first of these objections, considerin
words the prisoner used after this, and aft
deceased was out of the room, and what f«
ed, since the jury have found this fact, wi
saying any more about it, the natural
striiction is, that this was only used by th
soner as a blind to the company, to oc
from them his real intention, till they
gone out of the room. As to thesecoD
stands ouoertain upon the verdict ; hot .il
uncertainty which can have no influence
the present determination ; for if Mr. C
bad shut the door, that would not akme
materially altered the case. As to the t
since express malice before appeared to
the prisoacTi the^mting thai net doei m
far thg Shurier »f WSliam Cower.
A. D. 179S>
[^
M A« fint beat of pamoD continued
rtlhat the maliGe onolioiMd.
counsel for Mr. Ooeby farther objecteJ,
Mared there was a motual fitfiiting
K«er was shot ; for it is fband Uiat he
id Area slieiit wounds ; tlien it is not
.ibdrew first, or made the first assault,
ktktr was ahut ; and it was possihte a
■Ha <|aarrel might then rise, in which
tor Bjffbt be the aggressor, and there-
jafedsT verdict was uncertain in a ma-
pal. The answer to which is, what is
ilq^'s Case, Kelynge S7, cited before ;
'4UlsB, and do sudden qusrrel ap-
iiiaarder ; lor it lies on the iiartv in-
)to^Te the8uddeni|uarrcl; audtnere-
ijay not baTiug found anv such thing
!piNoer'a bvncnt, it is to be took there
taeh. This u said, supposing the latter
itrerdict could be considered, without
iif the fimner part of it : and that when
f|M]r went out of the room, the nrtsoner
bGowct wcflereoanciled. But however
%ht have been, b«ne it appears there
wcsnrilialifin, and therefore there can
Bigination of a new, original quarrel in
■sfter the door was shut. And as to
fk wounds the prisoner received, that is
nd; Ibrhe having malice against Mr.
(IbDugh there was mutual figbting, and
wer was wounded, yet, when he killed
»cr, it will be OMirdcs'.
ba Act in the special verdict, which
U on, was, when Mr. Gower was ask-
iIm destb4»ed, whether be had received
■di in a manner among swordsmen
Vr? He answered, 1 think I did ;
^ Ike deceased shewed, he was satisfied
Asa fair. The answer to which is
' A« if A have malice against B, and
■Mud fight, though the fight is never
'Mrding to the law of arms, yet if A
Jtvill be murder.
SKs the counsel for theprisoner princi-
died on to make this fact only man-
V, were Rowley's Case, 13 Coke 87 ;
ner's Case, Comberbatch, 407, 8.
13 Coke 87, the case was, that two
bting tog^her, the one of them was
d in the fiMse, and he bled a great deal
•e ; and so he ran three-quarters of a
lis fkxhetf who seeing him very bloody,
bis hand a cudgel, and went three-
of a mile to the other boy, and struck
D the head, upon which he died, aud it
bat manslaughter, for the passion of
r cnntioned. And there is no time,
law can determine, that it was so
bat it ahould be adjudge)! malice pre-
(Note, Theae are the words of is Coke
ieh the answer is plain, for the reaaon
Cro. 4ac. 396, which is the same case,
fiuher having no anger before, but
dvoked upon Uie complaint and sight
m'a blood, and in that anger beating
vUsh Im died, the Uw Mi^m^C^ ^ ^
be u|u>n that sudden passion. But that is, coi:*
sideriagwliat has been said before, clearly dis-
tinguishable from the present case ; besides it
may be added, it was but a little cudgrl he
struck with, from which no such fatal etent
could be reamnably expected.*
Turner's Case was this ; his wife complain-
ed the boy had not cleaned her ck)gs. upon
which Mr. Turner took up a clog, and struck
him on the head, and killed him ; and though
there was no oilier provocation, it was hehl
only manslaughter. But the reason of that
was, because the cloff was so small, there
could be no design to uoany great harm to tiie
boy, much less to kill him; and a master may
correct a servant in a reasonable manner for a
fault. And lord chid" justice Holt, in Comber-
balcb 408, says, that iu that case, it was an un-
likely thing, meaning, tiiat the dcjg should kill
the boy. The counsel for the prisoner, bein^
apprehensive of the authority of Mawgridge's
C-ase, besides the observationa they had made,
mentioned before, to induce the Court to look
upon that judgment, as not warranted by law,
endeavoured to distinguish the present case from
it, supposing it io be Taw. And lit, They said,
that in Mawgridge's Case, the bottle hit Mr.
Cope, and stuimed him ; but here the bottle did
not hit Mr. Gower, but only brushed some
powder out of his peruke. 3dly, in Maw-
gridge's Case, the bottle was full of wine ; here
it is not found to bsve been so, and therefore
must be took to have been empty ; and the size
of the bottle does not appear, it might be very
small. Sdly, Mawgridge drew his sword im-
mediately aller throwing the bottle, without in-
termission ; here Mr. Gower^s sword was first
drawn. 4thly, Mr. Cope nerer drew ; here
Mr. Gower not only drew the first, hut clashing
of swords were beard, so there must have been
fighting.
It is very true (so far as these facts will make
a difference) this present case is diKtinguishable
from Mawgridge's Case ; for that case was
determined only upon an implied malice (hut,
as I said before, was very rightly and justly
determined, as we all agreed), for strictly and
properly speaking, altlioiigh the word exprew-
malice is mentioned io the reasons given for
that resolution, yet it was but mahce implied.
But still this way of distinguishinjr the present
case from Mawgridge's, will lie ol no seryiceto
the prisoner, because, though all the juclg*a
heldUiis case was distinguishable from Maw,
gridge's Case ; it was in respect that t^^^is « a»
a much stronger case a. to the '"""ler th*
jury having foundfiicts which •»J'^?. J^^'^Vj^^Jy
U an expn.» inalic^ ags.ns^ M- ^C-wer
Upon the ^^«!« ™»"/^r\||^^^^^
concurrent op""«n f •" ^J^^ba^, John One!
• Vide Foster's lUporU, p. W4, Rowle^-^
CMe.
tff] 19 GEORGE I.
fkctioD, but tl •DDther time and place lie irniild
be reuily lo gire it to him, ind in the mean time
dciiral faim to be more civil, or to leave the
csmpany : tbereupon Jobn Mawgriilge rose
vp, and waa goio^ out of the ruom ; bdiI to (;o-
log, did (uililenly suatcli up a glasi boille lull
oTwiDe tUen rtaiiding upoo the table, and lio-
Imtly tlirew it at him, tlie said Mr. Cope, aiid
therewith ctrucL him upon the head, and im-
mediately thereupon, wiUiout any iDlermiiEi<»i,
drew his ■word, and Ihriut bim into the led
Ert lit' hit breast, orer the arm of one Robert
irtit), nut»ith standi D[r the tudearour Uied
by the caiil Martin to hiader Uawgridse firam
killing Mr. Cope, and gave Mr, Cope the
wouod in the iudiciment meDtioned, whereof
beiniitantly dieil. Butthejnry dofurtheraajr,
tfaat iuimcdialelv, in a little apace of time, be-
Iween Mawgriii^e's dniwiu<r hii anord, and
tiie giving tlie mortal wound by him, Mr. Cope
did ante from his chair where he sat, and took
Mwther bottle that then atood upon the table,
and ihrcw ii at Slawgridge, whicn did hit and
break hit head ; that Mr. Cope bad do iword
in hit haod drawn all the while; and that
•(ter Mawgridge had throirn the bottle, Mr.
Cope tpake not. And whctlier Ihii be murder
fir mautlaugbter, the jury pray the advice of
the Court.
A day being appointed fmr the retnlulion of
die Court, and the maralial required to bring
the pritouer to the bar, returard he wai e*-
ctped ; which being recorded, the Chief Juttice
(Holt) gave the opinion of the judgea in this
manner ;
Tbia Record being remored into Ihii Court,
thecaae haiii been argued before all the judge*;
■nd all of ut, except ray lord chief juttit'e Tn-
-VOr, arc of opiuiua that Mawgridge it guilty of
murder.
Tliia hath been a cate of great expectation.
This ditlinction between murder and man-
■taujfhler only, is occasiuDed by the ttatate of
13 H . 7, and other itatutet that took away the
benefit of clergy from murder committed by
mah'ce prcpeuKd, whiuh tlatuiea have been ttic
DccatioD ol many uire tpeculatiops.
The word " murder" i* known to be a tern
•r a deatriplion of boinicide committed in the
WOrat manucr, which is no where vied but in
thit itland, tud it a word framed by our Saxon
•ncavtoraiu ibereignof Canutus upun a pai lieu-
lar occasion, which appears by an uncontuited
■nthorily, Lamb. HI. In the laws of Edward
the Oonleatur : " Murdra qiiidem ioventa fuC'
>unt in diebus Canuli * lUgit, qui pott acqni-
* But according lo lord Fortescua; " Mnr-
der ii a Saxon woni, and to be fbuud in several
placea in the aticienl Haxoii laws ; and it of a
lery aucieol dale, ptabably at old ts tbp Haion
tongue itself, which it alioul 600 yeart older
than Canutut't time. We frequently in Saxon
aulhsra find the worda ■orttw-, narthtr, war-
Mar, vnilbsT or mvdar ; Bud tbafe coma from
Ike BDciaiil Buon ward mertk ; which ligsi-
3Via/ of Major Oiubif—
aitam Aogllam et pacificatam, rofnto I
An',rliK: TEmisit in Uaciam exercilum
Tbereupon a law was made. That ifai
Itthman ahould kill any of the Danes thi
leli behind, jf he were apprehended, b
be bound to underijio the ordeal trial
himself; and if the murderer were n
in eight davi, and alter that a mii
given, ilien if be could nut be found,
ihould pay 46 marks, which if not abb
it ahonld he levied upon the huiulied,
ion, 130, agrees with this account.
Tlioufih this law cea*ed upon llie (
of tbe Danes, yet William the Cooqt
vived it for the aecnrity of hit Normac
peara by Ids laws, after he had contira
Edward the Coiifessor'B laws. And I
' primo regoi, afterwards by hia
appears iu tbe addition to l.an)bc-rt)esl
"That if a man be found slain, he a!
taken to be a Freucliman, if it was ni
tliat he waa an Englishoiui, and the
waa bound to euquire, whether Ibe pet
waa an EnglishmanoraFrcachman."
inquisitions were taken before the f:on
returned to thejiittices io eyre, and if
found him an Englishman, then the
waa tn be discharged, which low w:
Englisbire, and the justicea in eyre \
bound to enquire thereof, until the stat
E. 3, which, aa it is mentioued in ii
waa abolished.
Ilcrehy a mistake npon the statute <
bridge it rectified, which it cap. 36.
drum de octero non adjudicatur coran
nriis, ubi per infortunium adjudicatun
locuru habeat murdrum de ioterfect
loniam tanlum, et non aliter." This
made upon a supposition that he tlmt I
person alaiu by misfortune should ba
but only to explain, or rather to take c
gour of the Canqiieror*t law, that ilu
should not be couipelled to find out t
slayer ; or if he were found out, lie ah
undergo the penalty of that law. F<
taw ttood, or was interpreted before i
lute, if a man was found to lie slain, it
ways inteuded, 1. That he was a Ftc
3. That he was killed by an Eoxlishi
That killing was mutdtr. 4. II' any
apprehended to be the murdcnr, be i
tried by fire and water, though he ki
liy misfortune ; which was exicndet
raacon and jutticc in favour of the M
fie* a Tuilent death, or sudden destriic
SDmelimes significt murder,in the prcs
ofourcoinmoD lawyers. From hem
thf barbarous Idtin term wurJruM |
drum, and tba vedjs mordraiv, nurd
mordidrare ; which arc of much gre:
quily than king Canutut, who began
but m lOlS. Now give ne leave lo
the true derivation of eur word m
wb«^ I Ihi^ maniftatly cquuh frooi
morti itn." f onmow iJaw'a Pt«£
lUperti.
MmKgridge^s Cote*
SMitttfi frwkillfld by oiitforMM,
bim wai not m danger of death,
vai DDt M&tj, For. Mitb Bncton
e Ibe bltef «ld of If . S,) fol. 1S6,
Ufleib a man by mndbrtaDe, nM to
fed." 5. Iflheittalieraetor was not
■ tbtf csMRitTy fi^aa to be anicTMd,
b itatato of MaiMridffe, if it was
tf dw peraoB alaiD was d rreachitaaii,
M 1^ mialbrloiip, then tho onuntry
I be amerced if the mnnslayeir was
; m if he were tafceti, be should not
his ordeal trial. This seems to be
■sning of that statata.
Bsadly, it will appcartoa demonstra-
kfbre that afatnte, be that killed an
■ ' tier infbrtaDinm ' was never in
r of death ; for tbb slatme of Marie-
s made 59 R. S. The statnte of
tarta waa consummate 9 fl. S, and
IPS, ** That every one iwsprisoncd ftit
rf a maai, and riot thereof indicted,
i|;ht iHirsae the writ DeOdio et Atia ;
ns roond that the person imprisoned
I * se defcndendo,' or * per infor-
Btd not ' per f^loniam,' then he was
i." Wfaieb shews that he was not
sf death ; for if he had, he would not
let to bail, « Inst. 42.
1 bare ^veo a true aeconnt of the
ke word M order, what it w«i when
e time of Caniftbs) a Dane, and since
a the Confjueror) when a Frenchman
I; for, as it was then sniiposed in the
^snntns, the Kn<;1ishmen hated ihe
•D the account of thrir nation thst
iritbem, and would u{K)n all orra-
ktbeir de^truriinn, as thr>y did of a
lUe Dumber of them in the time of
li Ike Saxon kin«r ihnt )trrrciled Cai^n-
veone; so tiie (-oni|U«'ior bad the
■i to suspect the safety of his Nor-
ads, as sppeara hy the Confrssor's
Bb. 141, the secret or iDKidious killing
m as well as a foreigner was declared
der. Bracton, ISO, 134, 155. Mur-
H de6ffed, *' Est occulta homiiium
m et fiotorum occisio matiu hominuin
frpetrata." With which agrees the
books of Britton and Ffcta : only in
brrigner it was penal to the country ;
itive.
niay be necessary to shew what was
rstrKMl by Homicide or Manslanj^hter.
'23, mentions the worst {tart iif it,
vulantary liomicide, defined in this
* Si quis cx cert a Rcientift ct in a«isul-
litato, ira, vol odio, vrl causd lucri,
. in felonift, ac contra pacem Dominr
lem interfecpfit :" if one knowinely,
fomeditateil a<)«aiili, by an^er or ha-
' hicre-sake, should kill another, this
inted maoslau^jrhter ; if it be done
' saith Bracton, it is ftmrder : that
e difference there was between the
s otfaer:
A.D. 1706.
[69
It appearb, that sinee that of Bracton the no*
tioA of moider is much altered, and coropre«
bends all homicides, whether privately or pub*
licly committed, if done by nsalice prepensed.
With this airreea Stam. PI. Cor. 18 b. << At
this day (saitb he^ a man may define murder in
another manner ttian it ia defined by Bracton^
Britton and Fleta : If any one of malice pre-
pensed, doth kill another, be he Enfflishman or
foreigner, if secretly or publicly, tnat is mur-
der: this waa the definition long before the
making of the slatntea of 4 and S3 H. 8, and
the other statntes that took away clergy." To
define murder, there must be mafitidprsteogitatd^
as also murdravit : so that if an indictment ho
thai the party muiHlravitf and not ex malitU
pracogitatA^ it is but manslaughter, Yel. 204.
2 Cm. 98S. 1 Bid. 141, Bradly and Banks. So
if it be ejr mnlUiS pr^teogitaiAf omitting mar-
drarity it is but manslaughter. Dyer S61. PI.
Sd->d04. PI. 56. Vide Stat. 10 £. S, cap. 2.
The parliament complained that mnrderers,
&o. Were encooraged to offend, because nardona
of manstanghtefs were granted ao easily ; tha
act therefore prohibits the ^nting thereof.
13 R. 9, recites the same mischief, and great
damage by treasons, mnrdera, &c. because par^
dons have been aasily granted : therefore tha
act doth provide, *< That if a charter for tlia
death of a man be alleged before any justice,
in which charter it is not specified that he of
whose death any such is arraigned was mur-
dered or slain by await, assault or malice pre*
penscd, it shall be enquired, whether he was
murdered or slain by assault, await, or malicd
pre|)ensed ; and if it be so found, the charter of
pardon shall be disallowed.'* This is a plain
description of murder, as it was taken to he
according to the common understanding of
men.
Ever since the killing of a man by assault of
malice prepensed hath been allowed to he mur-
der, and to com prebend the other two instances.
Bnt Ivecanse that way of killing hy poison did
not come under the ancient definition of Brac-«
ton, (^c. which is said to be manu hominumper*
ptlrnta^ or of this statute of 13 R. S. There'*
fore by the statute of 1 E. 6, c. 13, it was en-
acted, *' That wilful poisoning of any person
should be accounted wilful murder of malice
prepensed."
One thing more is fit to be observed, that in
all indictments for murder a man is not charged
positively, that he did murder the person slain,
hnt that he ' ex malitift prsBCOgital^. in ipsum
' inKultiim fecit, ac cum quoilam gladio,' he
gave him a wound whereof bed ie<l : * Et sic ex
* maliti^ pra:cogitatft ipsum murdravit,* so the
mnrder is charged upon him by way of conclu-
sion, and as a consequence from the antecedent
matter that is positively alleged. To come
close to a state of the present qtiestion, it doth
appear that Mawgridge threw the bottle at
Mr. Cope without any provocation given to
him ; for the diflercnce was betwren him and
the woman that was there in com|tanv, and his
bebaifiour was so rude and dista^tcful'as did m*
es]
12 GE0B6E I.
duce eaotain Cope to desire him to leave the
room, wtiere he was only ajg^est to him, and
there by his permission ; this Cope might rea-
sonably do, which could be no cause to provoke
Mawgridge to make the least assault upon
him : therefore I shall maintain these three
positions :
1. That in this case there is eamress malice
by the nature and manner of Mawgrid^e's
throwing the bottle, and drawing his sword im-
mediately thereU])OD.
S. That Mr. Cope's throwing a bottle at
Mawgridge, whereby he was hit and hurt
before he gave Mr. Cope the mortal wound,
cannot make any alteration in the offence by
reducing it to be of so low a degree as man-
slaughter.
3. 1 shall consider what is such a provoca-
tion, as will make the act of killing to be but a
manslaughter only.
1. Here is express mah'ce, that appears by
the nature of the action. Some have been led
into a'roistake, by not well considering what
the passion of malice is ; they have construed
it to be a rancour of mind lodgetl in the person
kllliug, for some considerable time before the
iM>mmission of the fact, which is a mistake
arising from the not well distinguishing be-
tween hatred and malice. Envy, hatred, and
malice, are three distinct passions of the mind.
1st. Envv pro|)erly is a repining, or being
grieved at the happiness and prosperity of an-
other, * Invidus alterius rebus macrescit opimis.'
2dl3', Hatred, which is oc/ium, is, as Tully
•aith, ira inveterata^ a rancour fixed and settled
in the mind of one towards another, which ad-
mits of several deerees. It may arrive to so
high a degree, and may carry a man so far as
to wish the hurt of him, though not to perpe-
trate it himself.
3(ily, Malice is a design formed of doing
miscliief to another; 'Cum quis dat& opeiS
'male agit,' he that designs and useth the
means to do ill, is malicious, 2 Inst. 42. Odium
signifies hatred, atia malice, because it is eager,
aharp, and cruel. He that doth a cruel act vo-
luntarily, doth it of malice prepensed, 3 Inst. 62.
By the statute of 5 Hen. 4, If any one out of
malice prepensed shall cut out the tongue, or put
out the eyes of another, he shall incur the pain
of felony. If one doth such a mischief on a
sudden, that is malice prepensed ; for,saith mv
hird Coke, ** If it be voluntarily, the law will
imply malice." Therefore when a man shall,
without any provocation, stab another with a
dagger, or knock out his brains with aliottle,
this is express malice, for he designedly and
|iurposely did him the mischief. This is such
an act that is malicious in the nature of the act
itself, if found by a jury, though it be sudden,
and the words ex malitH pr^cogilatd are not in
the verdict, 1 Cro. 131. Ualloway's case, who
was woodward of Osterly-park, in Middlesex ;
a boy came there to cut [steal] wood, whom by
obanoe he espying, and the bov being upon a
tree, he immediately calls to him to descend,
whish thf boy obeyingi HaBoway tiad him to
Trial of Major Xindf^-^
an hone's tail with a oord that t]
then gave him two blows, the hon
and brake the boy *s shoulder, wher
This was ruled to be murder by ail
and barons, except justice Huttoo
doubted thereof ; and that was a si
than this ; for there was some kind
tion in the boy, who was stealing i
the park, of which Halloway hai
and it cannot be reasonably thouj
designed more than the chastisemen
and the horse running away in tl
was a surprize to Halloway ; yet ii
boy did not resist him, his tying
horse's tail was an act of cruelty
whereof proving so fatal, it was i
be malice prefieused, though of a s
in the heat of passion. This case
in Jones, 198. Pal. 585. And t
that the Court could determine it t
prepensed upon the special ma
Crompton 23. Two playing at ta
in their same, one u|>on a suddc
other with a dagger : this was held
der by Bromley at Chester assiz
So in this case, if the bottle bad k\\\\
before he had returned the bottle
gridge, that would have been mui
all manner of doubt.
in the second place, I come uow
whether Mr. Co|)e's returning a
Mawgridge before he gave him
wound with the sword, shall have i
of influence upon the case : I hold
Because Mawgridge bj^ his throwii
had manifested a malicious design,
his sword was drawn immediatel;
the mischief which the bottle roigi
of. Thirdly, The throwing the ho
tain Cope was justifiable and It
though he had wounded Mawgridg
have Justified it in an action of
battery, and therefore cannot be ar
tion to Mawgridge to stab him will
That the throwing the bottle is a de
of malice is not to be controverted ;
that violent act he had killed Mr. C
been murder. Now it hath been i
A of his owuialice prepensed asi
kill him, an^B draws his sword i
A and pursues hun, then A for his
gives back, and retreats to a wall, B
ing him with his drawn sword, A
fence kills B. This is murder in
having malice against B, and in
thereof endeavouring to kill him, is
for all the consequences, of which
original cause.* It is not reasoni
man that is dangerously assaulted,
he perceives his life in danger from
sary, but to have liberty for the sec
own life, to pursue him that mal
saulted him ; for " he that hath
that he hath malice against anoth<
to be trusted with a (hmgerous wc
* 8ec East's Picas of tha Ciowi
Mmogridge*$ CoMe,
bit. ^8. Bak 49. And wo molted
indgn, 18 Car. 9, when they met in
ni, in |ireparation for my lord Mor-
. I>alt. 979. If A of malice pre-
Nharpe a |iwtol at B, and then riina
maea him, and A tanw back, and in
dfeoce kills B, it ia murder. Tliis I
ffDod lair ; for A had a maliciniiB in*
tf B, and hit retreat after he had dis-
■ ^d1 at B, waa not becaose he re-
I for his own aafety.
tdnri, there are mutual passes made
bt comhaunta, yet if there be oricnnal
m» tlie parties, it b not the iiiter-
'Uons will make an alteration, or be
ilion cf the offence of killing. There-
in if Maw|^idge had thrown the bottle
fi^ and Mr. Cope bad returned ano-
him, and kit nim, and thereupon
^ had drawn his sword ami killed
ft would have been murder. Some
hat tliere is a diflerence betwocn the
- that the assault by the pistol, and
fa dud was express malice, but this
lUce implied. Surelj there is no dif-
sr malice implied is prepensed, as
F there had been a proof of malice, or
- some considerable time before the
be stroke gif en, or an attempt made
implied, is as dangerous as a stroke
a malice expressed, therefore may be
y resiMed. Thia very point was also
i by the twelve judges at Serjeants'-
hy them resolved to l>e murder upon
BB ot my lord Morley 's Case. When
Kieks another with a dani^^erons wea-
mt any provocation, that is express
"W the nature of the act, which is
Fk flefinition of mulice implied is
svx expreaa in the nature of the act ;
ranan kills an officer that had autho-
»irrest hin iierwn ; the person v»ho
is defence of himself from the nrrest,
fe Foster, in his Reports, p. 5rr4-5,
Uwir ridge's Case, " lie, upon words
letween him and Mr. Cope, threw a
] great violence at the head of Mr.
i immediatf ly drew his sword, Mr.
nied the bottle with equal violence ;
th lord Holt, lawful and jusiitiable in
so to do: for, as he ari^ueSh a little
:, He that hath shewn that he hath
linst another, i«) not fit to lie trusted
ij^eroiis weapon iu his hand." — I'pon
! jud^e observes, '* It was upon this
presume (and possibly , too, u|>on the
ou p. touch ini; the arrest of a person
pTcn a dangerous wound), that the
in that ca«e of the marquis De
irho stab?>e«l Mr. Marley sitting in
• Annec3p. 16,) di^chnr«^e<l the party
oppoMfd lo have <;ivtrn hini the mor-
iVom all nmiinf^r of pmsecntion on
at; and dechrcd the kiliin;^ to be a
I necessary action/' Forruer Edi-
A. D. 1706.
f66
is gailty of murder, because the malice is im-
{died, for properly and naturally it was not ma-
ice, for his design was only to defend hirovelf
lesign
from the arrest
S. I come now to the thinl matter proposed,
which is, to consider what is in law such a pro-
vocation to a man to commit an act of violence
upon another, whereby he shall drprive him of
his life, so as to extenuate the fact, and make it
to he a manslauQfhier only. First, Negatively^
what is not. Secondly , Positively, what is.
First, No wonls of reproach or infamy are suf-
ficient to provoke another to such a degree of
anger as to strike, or assault the provoking
party with a sword, or to throw a bottle at him»
or strike him with any other weapon that may
kill him; but if the person provoking h%
thereby killed, it is murder.
Jn the assembly of the judges, 18 Car. 9^
this was a |ioiut positively resolved.
Therefore I am of opinion, that if two are io
company tog;pthcr, and one shall give the other
contumelious language (as sup|>osc A and D),
A that was so provokeil draws his sword, and
makes a pass at B, (B then having no weapon
drawn) but misses him. Thereupon B draws
his sword, and jmsses at A. And there beinr
an interchange of passes between them, A kilb
B, J hold tliisto be murder in .4, for A'spassat
B was malicious, and what B aAemt'arda did
was lawful. But if A who had been so pro*
voked, draws his sword, and then before he
passes, B's sword is drawn ; or A bids him
draw, and B thereupon drawing, there haf»pen
to l>e mutual passes : if A kills B, this wdl be
but manslaughter, because it was sudden ; and
A's design was hot so absolutely to destroy B,
hut to combat with him, whereby he run the
hazard of his own life at the same time. But
if time was appointed to fight (suppose the noxt
day), and accordingly they do ivjjit, it is inur-
der in him that kills the other. But if thry go
into the field immediately and fight, then but
manslaughter. Muppose u|)on provoking Ian*
guago given by li to A, A gives R a Im>x on the
ear, or a little blow with a stick, which hap-^
pens to be so unlucky that it kills B, who
might have some imposthunoe in his head, or
other ailment which proves the cause of B's
death, this blow, though not justifiable by law,
but is a wrong, yet it may be hut manslaughter,
because it doth not appear that he designed
snch a mischief.
Secondly, As no words arc a provocation, ao
no affronting gesturt»s are KufK<:i<*iit, th'^u^h
never so reproachful; which p«i»i "a* *^-
judgttl, 8 Cro. 7/9, Wats and Biniui, in aL ap ■
peal of munler.
There having been aqnarnl lMtwe.n A i^id
B, and B was hurt in tlm fr.i> i »>»! about i»p
davs after B came and iimmI. .» «•> iii«»ni- u
A,' who thereupon striirk hu" "I"" "'* ^ ' *^
the leg, of which he iti«i..i.ilv «»i«d It "t^
murder in A, for tin- nllM.iiin.^i hini in ■ ■
manner was not any pinvm ttii«Mi to A, :;
that violence to B : . ■ l t
There bath bsen aii'»thi-» •■*■«. whict i
F
.1^^-
«7]
IS GEORGE I.
halli been the occasion of some mistake in the
dcHriiiion of qupstious of this kind, Jones 433,
D. ^Villiams's Case, he being a Welshman,
upon St. David's day hayin^r a leek in his hat,
m certiiin |»cr8on pointed to a Jack of Lent that
huoj^ lip Iianl l>y, &ud said to him, Look apon
\oiir countryman ; at vihich D. Williams was
much enras^ed, and took a hammer that lay
upon a stall hard liy, and flung^ at him, which
missed him, but hit another and killed him :
he i%as indicted upon the statute of stalibing'.
Resolved, He was not within that statute, but
guilty of muuklauufhter at common law. 1
concur with that jodijrment, that it is not within
the statute of stabbi »(,>-, for it is not such a
weapon, or act that is within that statute, nei-
ther could he be found guilty of murder, but
only «)f manslaughter, for tlie indictment was
for no more. But if the indictment had been
for murder, I do think that the Welshman
ought to huve hren convicted thereof, for the
provocation did not amount to that degree, as
to excite him designedly to destroy the person
that ga?e it him.
Thirdly, If one man be trespassing' upon
another, breaking his hedges, or the like, and
the owner, or his servant, shall upon sight
thereof take up an hedge-stake, and knock him
on the head; that wdl l»e murder, because it
was a f iuleot act beyond the proportion of the
provocation, which is sufficiently justified by
llallowa^ 's Case, who did not seem to intend
so much the destruction uf the young man that
stole the ivood, as that ho should endeavour to
break his skull or knock out his brains, yet
using that violent and dangerous action of eying
him to the horse's tail, rendered him guilty of
murder.
If a man shall see another stealing his wood,
he cannot justify beating him, unless it be to
hinder from stealing any more ; (that is) that
notwithstanding be ne forbid to take any, doth
proceed to take more, and will not part with
that which he had taken. But if he desists, and
the owner or woodward pursues him to bea.
him so as to kill him, it is murder.
If a man goes violently to take another man's
goods, he may lieat him off to rescue hit gtKMls,
9 £: 4, :281, b. 19 Hen. 6, 31. But if a man
hath done a trespass, and is not continuing in
it ; and he that hath received the iniury shall
thereupon beat him to a degree of killui^, it is
murder, for it is apparent malice; for m that
case he ought not to strike him, but is a tres-
passer for so doing.
Fourthly, If a parent or a master be provoked
to a degree of pusion by some miscarriage of
the child or servant, and the parent or master
shall proceed to oorrect the child or servant
with a moderate weapon, and shall by chance
give him an unlucky stroke, so as to kill him ;
that is but a min^enture. But if the parent
or roaster shall use an improper instrument in
the GorrcGtioo ; then if be kills the ehild or tlie
servant, it is murder : and so was it resolved
by all the judges of the King's- bench, with the
eoBoorrMoeofthe JonI " "^'" ""''
Trial of Major Oneb^^
in a special verdict in one Grays' Case, lc=
at the QUI Bailey, 10th October 18 Car. 8,
removed into this court, Kelyng, p. 64. (ZI
being a smithy B was his servant ; he c^
manded B his servant to mend certain
belonging to his trade ; afterwards he
servant being at work at the anvil, €hray
his servant whether he had mended the
as he had directed him. But B the
having neglected his duty acknowledged
his master ; upon which tue master wt
and tohl him if he would not serve hi
should serve at Bridewell; to which the
vant replied, That he had as gooil serve in
well as serve the said Gray ; whereupon
said Gray took the iron-bar upon which
his servant wns workint*', and struck his
with it upon the skull, and thereby b^-
his skull, of wliich the servant died. '"T
was held to lie inunler; yet here was a ^
vocation on a sudden, as huddeu a resentos
and as speedy putting it in execution;
thou(;li he might conect his servant X
tor his neglect and unmunncrliness, yet exec
ing measure therein, it is malicious. £▼«
one must perceive that this last is a &troii|
case than this at bar.
First, Gray was working honestly and fair
at his trade, and justly calling to Lis serrai
Un- an account of his business : this miFcreii
was in the actual violation of all the rulni
hospitelity.
Secondly, Gray*s action was right as to th
striking his servant by way uf correction ; kl
the error was in tiie degree being too vioM
and with an improper weapon. This uf Mas
gridge was with u resolution to do mischief.
Thinlly, lie liiul not the least provocatii
from Mr! Cope, until after be had made tl
first and daugenius assault, and theu nurwi
it with thie di-awing his sword to second it, b
fore Air. Cojie returned the other bottle. B
Gray had a provocation hy the disappointmi
his servant gave him in neglecting his busiuM
and returning a saucy ausiier.
The like in obstinate and perverse cbildre
tliey are a great giief to jmrents, and wb
found in ill actions, are a great provocatio
But if upon such provocation the parent thi
exceed the degree of moderation, and tberal
in chastising kill the chikl, it will be raunk
As if a cndgei in the correction that ii used I
ofa large size, or if a child be thrown dov
and stamped upon ; so said the lord Bridgm;
and justice Twisden, and that they ruled it
in their several circuits.
5. If a man upon a sudden disappointOM
by another shall resort violently to thatoth
man's bouse to expostulate with him, and wi
his sword shall endeavour to force his entraoc
to compel that other to perform his promise,
otherwise to comply with his desire ; and tl
owner shall set himself in opjiosition to hii
and be shal) pass at him, and kill the owner
the bouse, it is murder, U Roll. Hep. 40
Clenent agtinal air Charles Blanl, in an a
peal of mordcr. The case wai| that Cleme
]
Matogrid^e^s Case,
pnniKd a do^ to xir Charles Blunt ; and
n^miH leconliii^ly to deliver liitn, re-
nd bni die dnpr home to his house : at
■rCbiriesBhint fetched his s\7ord, aud
ti CleowDt's house i'nr the dog. Clement
It the door, and resisted his eatry. Blunt
fcilli Clement. The jury were
nd fboDd this fart in sir Charles
II be bot manslaughter. Doddrid^^
«M4|>fjroroplDion it %vas murder. But the
" ^ intioe was a little tender in his di-
litM jory. But Holls makes this re-
Ifeilitwu not insisted u;ion by the a p-
■■■AooodkI, that Clement was in the de-
mm tf bit bouse, and that Blunt atucked
ttllNtein: it was without all qnes-
■■dcfithoo^h of a sudden heat, for there
MSMBoh made by Clement upon him nor
lyof bii friends, but all the violence aud
ni€p sir Charles Blunt*s side.
tbng Id tbeae particulars shewn what u
I a BTOfoeation sufficient to alleviate the
^al^ng, ao as to reduce it to be but a bare
'nde. I viJI now, secondly, ^ve some par-
rdtij aucb as are supported by autho-
Wf aad general consent, aud shew what are
imailoired to be sufficient provocations.
fat, If one man upon an^ry words shall
■bsBasaanlt upon another, either by pulling
iB^tbeiiose, or tillipius; upon the forehead,
■tfW that is so assaulteil frhall draw bis sword,
■'iMDediately run the other through, that is
!■ ■aasiaoi^ter ; for the peace is broken by
iifOMMi killed, and with an indignity to him
itt laerired the assault. Besides, he that was
■ Aotted might reasonably apprehend, that
bilkat treated him in that manner might have
iMifvthfr design upon him.
Tmk ii a case in Stiles, 4G7, Buckner's
flat Buckner was indebted, aud B and C
■■r to bis chamber upon the account of his
■vitBria demand the money, B took a sword
ktt kaag up, and was in the scabbani, and
iMiattbe door with it in his hand undrawn,
I krtp the debtor in until they could send for
ftadiff to arrest him ; thereupon the debtor
nk oat a dagger which he had in his pocket
id Blabbed B. This was a special verdict,
id atfjudged only manslaughter, for the debtor
■a iokulted, and imprisoned injuriously with-
M any process of law, and though witliin the
ardsot'the statute of stabbing, yet not within
c reason of it.
fettoondlyy If a man's friend he assaulted by
oChfT, or engaged in a quarrel that comes
bhiws, and he, in the vindication of his
Old, shall oo a sudden take up a mischievous
■rament and kill his friend^s adversary, that
bat nn«DsUught«r : so was the case, 12 Rep.
[. If two be fighting together, and a friend
[ike one takes up a bowl on a sudden, and
ik it breaks the skull of his friend's adver-
ry, ef which be died, that is no more than
BHhO|{bler. 80 it is, if two be tighting a
■I, Ihougb upon malice prepensed ; and one
■M and takes part with him, that he thinks
■f kite tbe dindTaiUage in the combat, or it
A. D. 1706.
[70
I may be that he is most affected to, not know-
ing of tlie malice, that is but manslaughter, PI.
Com. 101, John Vaughan and Salisbury.
Thirdly, If a man perceives another by force
to be injuriously treated, pressed, and restrain-
ed of his liberty, though the person abnsed doth
nol complain, or call tor aid or assistance ; and
others out of compassion shall come to his
rescue, and kill any of those that shall so re-
strain him, that is manslaughter, 18 Car. 2,
adjudged in this Court upon a special verdict
found at the Old -Bailey, in the case of one
Hugett, 18 Car. 2, Kelyng, p. 59. A and
otbors in tbe time of the Dutch war without
any warrant impressed B to serve the king at
sea ; B quietly submitted and went off with
the press- masters ; H^igett and the otliers
pursued them and required a sight of their
warrant ; but they shewed a piece of paper,
that was not a sufficient warrant : thereupon
Hugett with the others drew their sword j, and
the press-masters theirs, and so there was a
combat, and those who endeavoured to rescue
the pressed man killed one of the pretended
press-tuasters. This was but manslaughter ;
for when the liberty of one subject is invaded,
it affects all the rest : it is a t>rovocation to all
people, as being of ill example and pernicious
consequeuce. All the judges of the King's-
bench, viz. Kelynge, Twisi^en, Wyndhaiu und
Moreton were of opinion, that it was murder,
because be meddled in a matter in which he
was not concerned : but the other eight judges
of the other courts conceived it only man-
slaughter, to which the judges of the Iviug's-
bench did conform, and gave judgment accord-
ingly.
Fourthly, When a man is taken in adultery
with another man's wife, if the husband shall
stab the adulterer, or knock out hJH brains,
this is bare inunsluuglit(*r ; lor j( alousy is the
rage of a man, and adultery is the hii^hest in-
vasion of property^, 1 Vent. 168. Baymond
213, I^lanning's Case.
If a thief comes to rob another, it is lawful to
kill him. Aud if a man comes to rob a man's
posterity and his ftimily, yet to kill him is
manslaughter ; so is the law, though it may
seem hard, that the killing in the one case
should not he as justifiable as the other. Lev.
XX, ver. 10. ** If one coininitteth aduhi^ry
with his neighbour's wife, <'ven he the adul-
terer and the adulteress shall be put to death."
So that u man cannot receive a higher provo-
cation. But this case bears no proportion
with those caMos that have been adjudged to be
only uianslausfhter, and thrrefore the Court
being so advised doth determine that Maw-
gridge is guilty of murder. Mure might be
said upon this occasion ; yet this may ut pre-
* in such a case the Court of Justiciary in
Scotland admitted the wife of a piuiuel upon
his trial for nuirder to give evidence that the
pannel discovered the deceased in the act of
ndnltery with her. See Christie's Case.
ai'Uurin N** 92.
71] 12 GEORGE L
sent safBee to Mt the matter now ia question
in its true lii^bt, to shew how necessary it
is to ap|>ly the law to exterminate such noxi-
ous creatures.
Upon this confiction the Court did direct
that process should be issued against Maw-
gridge, and so to pnicecd to outlawry if he
cannot be retaken in the mean time. *
The case was, VIr. Cope (a young^ branch
of tlie Co[ics of Rrains«*l, in Hampshire, harts.)
havini; i^ot a lieutenant's c«)mmiss:on ;in the
guards, invited some officers and other geutle-
men iodine with him at thu Dolphin tavern in
Tower Kire«ft, June 17, 1706i in order to wet
bis commission ; one of the gentlemen t«K>k
Ma^reridge aloiiif with him, telling him he
would be as welcome to Mr. Cope us any of
the company ; upcm that he went, and after
dinner wa« over, and paid for by Mr. Cope,
they all staid a while longer, and hud more
wine brouifht in, and paid half a-cro«vn each
for their club ; then they broke up, ami most
of them went away ; but Mr. Mawgiidge and
the rest being invited by Mr. Copt: to the cuard-
room in the Tower, went with him, and callrd
for wine. Two bottles were accordingly
brought ; and as they were dnnking, a coach
came to i\\q guard- room door with a woman
in it (of no very mudest behaviour), and asked
for capt. Cope ; whereupon he and Mawgridge
went to the coach door, and brought her into
the guard-room ; where havinje been a*while,
she cried, Who shall pay ror my coach ?
Upon this Mr. Mawgridge said, I will, and so
discharge<l the coach ; then he offered to salute
her, but she ^rejected him, and gave him ill
words ; to which he made returns of the like
kind ; on which lieut. Coiic took the woman's
part; and then Mawgridge demanded satis-
laction of Mr. Cope, in order to iirovoke him
to tight, &c. iko, and killed Air. Cope. Upon
tliis Mawgridge was tried at the Old -Bailey in
July 170(3, for the murder, and a special ver-
dict found, wherein ail the particulars are re-
lated, as before- mentioned: — But before the
arguing the special renlict, he ma<le his escape
out of the Marshalsea, where he was confined ;
and that night went to his father, major Maw-
gridge, who with his wife (Mawgridge's
mother-in-law) washed and rnbbed him all
over with green walnut shucks and walnut
Hquor to disguise him, and then all three set
out in the night, and walked above 30 miles
into Essex, where the father gave 100 guineas
lo a master of a Tessel, near Colchester, to
carry him safe to Holland, which he did ; there
be was concealed above a year and half; for
though he was a very hanusome man, he was
80 disfigured scarce any oue knew him; he
spoke French and Spanish generally and mighty
well ; but at last lieing at a tavern in Ghent in
Flaudera, and a little too merry, he spoke Eng-
Trial of Major Oneby^ tfc»
[
lish so fluently, and by some expressions
dropi, became suRpected, seized (a large :
ward having been offered for apprebendi
him), and on examination found to be the m
who killed Mr. Cope, was brought over
England in March 1707-8, and being brou|
to the King's- liench bar, received sentence
death, and was executed at Tvbum, on \V<
nesday, April SB, 1708, with William Gre|
for high-treason.* The ordinary says, Ma
crriilge went in a coach with him (and Gregu
a Klt^ge) to Tyburn; '' That he submit
ivillini;ly to his sentence, owning the justici
it, though he declared he had no premediti
malice uGrainst the gentleman he so uof
tunately killed. He said, he heartily repen
of it, anil praved that Goii would wash away i
stain, and deliver him from the guilt of tl
blood which he had so shed. He owned t!
he had been a very great sinner, but was m
that he had any ways offended God and m
and begged pardou of both. That he boj
God M'Ould siiew him mt^rcy in another wo
{>ecanse he was always giieving for his si
and particularly for this, ever since he I
made his escape ; and though he had no
prehension of lieing brought lo condeuinal
here for it, it was still continually liefore h
and the remembrance of it was painful to b
He made strong resolutions to live i»therw
and was always prayin:; to God to pardon h
and to keep him for the future, tie ackn<
lodged the justice of God had overtaken h
and would not suffer him to live long
punished for tliis heinous crime: He decli
his being in charity w ith all the world, e
with those who had brought him to this
puniiihment, and prayed for the conversion
all wicked persons, desiring they would t
wanting by him. He told me, he was ak
40 years of age, boni at Canterbury oi g
parents, and brought up in the Church of E
land; that b(»tli his father and ancefst«>rH
had the honour to serve the crown for aiNive
vears as drum- major; and that he him
had received a very good educatiiNi,
brought up genteelly, though he was lor a c
siderable time kettle-drummer to the first ti
of guards, and was a going with a commisi
into the army when this melancholy acci<
happened." — Major Mawgridge, on hi« s<
execotion, which hail no great an effect on I
could not be prevailed on either to eat or di
for three nights and three days, and n
about like a madman ; he afterwards beha
at times like one distracted, drawing his 8w<
and threatning to munier his wife, obliging
to kneel down for him to stab her. Sec. and 1
relenting. In short, he was never afW.r eaa
in his right senses ; movipg about from plac
place, though he lived to near 80 years of <
* fieo bit CMe» tqI. U, p. 1971.
m
Trkl tfJamt Carttq^
A. D. 1738.
C74
4^. TIk Trial of Jaues Caknegie, of Finhaven, before the Court
of Justiciary (in Scotland), held at Edinburgh, July 35, for
the Murder of Charles Earl of Strathmore: 2 Gkouce II.
AD. 17S8.
Cob Jwmiim, S. O. N. Bwi* Irnta in no-
mtammim Doom Burgi de Eilinburgl)
MMaaialoDM Henui Jnlii, HtJIerimi
t^lmmmtmnam ngaitoo ocuto, per ho-
mmA» TirM AUaniuai Cockburne de
QnaMan, Jonimriuin Clericum, Dd-
■ JaeeboiB HuikcDSie de Roy*toun
~ " Tmmm CaUarwood dc Pvlbnin,
■ DiTidem Enkina Je Dud,
I Gmkerain Pringle de New-
hi, « Hngklniin Andmin Fletcher de
KIbb n, CommiMiaii trio* J otticiariB, diet.
CiiTM legitime affirmato;
Ibmi Curtice of FiahaTm, prisoaer io tbe
UMfa vF EdiDbiirgfi, paoDcl.
TEDa
lofStntbrnore, end Mr. James
Ifi^ knther-gennui and nearent or kin to
AidMCMi Charlea carl «f Strathmorr, with
— aiMaadal tbe iiwlanceaf Dancan Pi>rbnr,
^ fe iaijriij'« advocate, for hia bigliDeai'i
Mnttifbrlbe crime of wilful and premedi-
t^mmitr committed by bim upon the penun
if Ac nid Cbarln earl of IStrallimore, as is
MnfriljoiPnliunH in the indictment raiwd
■fMhin tbrreanent, which is as liillnwH :
B of FinhaTei
I iiitoTdbM.ih uf Gdinbuttrh. vom
' mittmfl. at ttiP inilaiice of Siiinn
icteil
•fteilhiFiure, and Mr. Jiinirs Lyi
l^^n and oenrett of kin lo tbe dpceawil
CMrlnnrlot Stnilhmarc, ntih conrnnrseHnit
mUtrmtttnc* n\ Dunnn Forbrs, wq. hi* ma-
f9j't a^TOL-nte, for his hi[{line«s'ii inieiv«l :
tatabere. by the laws of Gud, tbe tan ol nn
■vp, tbr rommnn law, and the manicinal law.
■d practtcr nf ihii kiiiKdom, as well at ilit-
Iswt of all well-if"*erD«d realm*, wilful eod
fnneditate murder, anil all mnrdcTand homi-
ng, or heini{ art and part ibpreol', ere moai
•tpiaaiii crime*, and ivrerely punishable ; ypl
>*eit t<, and nf verity, that yvu hare prenumeil
m ciHiimti, and are i;iii1iy, actor, art and
fan.uf ill, iir nne fir other ot ihefnTi-said hiirriil
CTAra: in ao tar at, hailnfr BCausrlMs ill- villi
■d reitentment agaiott (hedeeesttCliariPseiirl
rf Ktraihmore, you ganceired a deadly hutred
■d malict! airatuit him ; and shaking; otf all
fear of God, and regard to theforesaiil Iniiilalile
hwi, on Tbunday the Wh o)' May, in thin pre-
■aiyear, 1738, or one or othemftlie day* ol
ftr aid nwiitb, about the Imiir of eight nr nine
'fllic night of that day, or some other hour iif
lUi day a* oigbl, npon the alnel of the town
of Forfar, within the coanty of Forfar, you did*
with a dtawD aivord, or aoriie oilier oBeDwre or
mortal weapon, wilhoul the leant cokiur or
cauM of proTOcation then giren Ly bim, iurada
tlie aaid ileceatt earl, who Lad no weipon )h hta
hand, and did basely and felonioutly munlCT
and kill liim, by giving him a wound Iherewillt
in the belly, some inches abote the naTel,
which, by following (he ihrutl with a second
push, weDt thruaghiheintestkiiesaDd iheback,
a little tower than where the said weapon ^-
tered the belly : nf which wound, alter gnat
pain, on Saturday immalialelv thereafter, or ■■
some abort space Ihereafter, he died ; aod so
was cruelly and barbarously murdered by yon.
At least, althe time anil place aboie-meniioDcrf,
with a drawD iword, or some other mortal
weapon, without any juat canie or pro*ocalion,
yougaTetbeaaiildpceaslCharleaearlofBlral^
more a wound in the belly, which reached
through the iniestiDea anil lack, wherelhrougb
be aoon at)er tell down, and died at tlia tiiM
loretaid. At least, at the time arid place abot*
described, the naid Charlea earl uf Sirothmora
was wi(h a drawn iwonl, or aoine other ileailiv
weapon, feloniouKly and barbarnwdy woundaJ,
and of tbe said weuud died within a few daya
ihercafier ; anil yiiii were art mid part io hia
murder. Ity all which, it is eviiltnt, that vou
are guilty, arl ami part, uf the crimes of wiirul
und premeditate murder and humicide, or ono
nr other of them, at the time and place, and in
the manner abore set foilh. And which fucta,
or part tlierenf, nr your beiflg art anil part of
anv of the said rrimeR, being Ibunil proven by
ihe vcrdirKif.inaiiaixc, in iireiciii-c of llie lords
jiistice fffMifral. juhlice clerk, and commit-
aiooera orjuitii-inrv, you iiui;hl lo be exempla-
rily punisiieil wiih the pains of law, to iho
terror of others to commit the like in lime coiu-
Puriiiert. — Mr. Duncan Fnrhea, his majes*
ly'it advocate; Mr, Churles Afeskine, his ma-
jesty's siiliciti'r; Mr. Atex. Hay, advocate;
Mr. Patrick (iratil, advocate; Mr. Georgv
OKilvy. ailviH'H e ; Itlr. .Ii.hn Ut;ilvie, advo-
c:i(e ; Mr. Hii^li l>alr_\mple, adviTute,
PrivuroluFs in Dffenet.—yU. ttobert Dutf
JlIs, sdvucate; Mr. .lumps Ft<rt;usson, senior,
ailviicate; Mr. John Forbes, udvncale; Mr.
n'illiam (iianl, admcule ; Mr, Janiea Pater-
son, advocate ; Mr. (Jeorge Sinolk't, advocate,
Tbe libel lM>iiig Ofii-nly read in court, and de-
bate vini race, in presence of thp lords, ihry
orduioed biiih parliea lo giv« in their iiilormn-
I tionii tn the clerk of court, iu order to be re-
corded ; tbe pursuers to give in thein agaioil
»J 1 GEORGE II.
Sklunlay next ; ■nd ihe panDel'i procuralon
lo tfive in bib Kgainit Friday therealW: uid
continued the caoie till Iho lit dij of Aiignit
next to cume, at oiDe o'clock ronniin^c; and
onttined ivitneasefl and asaiBera to attend alihtt
time, each penoa, under the paiu of latr ; and
ordained the pannel to be carried back ta pri-
«m ; and granted aecnnd diligence for tbe |iur-
■uets against the witottu*. >
iMrORMATION for So**KN« C0UDt<« of ^RATR-
HORB, and Mr. James Lton, Brotlier-
tferman to the deceawd Charle* Earl of
Slrathmore, and bia Majeily't Advocate
(or Ilia lliglinen*Blntere«l,aEaiDitJkTnes
Caraegie of FlabaTen, PanD^.
The said James Caroegie is indicted and ae-
•iiseil as gnillv, art and part of wilful and pre-
neklilatc murder; at least of murder and homi-
cide : in so far aa, upon the 9lh of May laat,
npon llie atreela nf Furfar, with a drawn aword,
Ik wounded the deceased CharlrK earlof filratfa-
mnrc in the belly, some mcbesBboTelhetiavel ;
nhioh tvouLiil went Ihruug'h tbc iotesiines and
the back, a little lower than where the «aid
ffcapou entered the belly; of which wound he
died soon after,
Tbe indictment, in the (int plare, charge
the fact a* proceeding from a causeless ill-will
and resentment the panncl bad cooceired
against tlie defunct, who, at the time the wound
was given, bad done nothing that could be pre-
lendMl Bs a colour or cause of provocation; and
a circumstance ia noticed, from which it may
be inferred, that there was deadly hatred aorf
malice ; namely, that after one push there waa
a second, whereby the wound went quite
through his body.
There is e second branch of the indictment,
in which the circumstances of premeditate ma-
lice and forethought felony, needed not to be li-
belled ; and he is chargeo only with murder or
koniicide, aa seiiarately relevant. And, lastly,
art and nart is charged upon bitn.
At calling befitre the lorda of Justiciary,
a^inst the first t»«Dck of ihe iodictmsnt, it
was eicepted, ■< That the indictment was ino
genera), particular circnmslancea not being ex-
pressed from which the causeless ill-Mill or ro-
■eiittneot meutinned, and forethought and pre-
meditate malice could be inlerrcJ, whereby the
panoel was deprived of the heueGt due lo all
(innels, wheu tried for their Hie, lo exculpate
ims«If, by shewing, that if at any time, prior
Id the lime [iientiuoed in the indictment, there
reconciliatinn and entire friendship :" AuJ it
was said, " That general libels ought not to be
sustained."
Ta this it was answered. That a prctiuns
grudge is charged, and that the deceast was in-
*adea without the least ctdour or cause of \in-
TOcatiou ; which is the stroni^cat evidence of
foictbougbt, npecially when joiuni witb tbi*
Mhir putinilar, that thw first tbnut wu fol-
Triat ofjamet Carnegie,
lowed with a second push, which was &. i
uf inveterate and relentless malice ; and It
was sufficient to chargo a previous qnari>
general, which would be made appear Ity
Siroof. Nor will it be found, that in Ubtr
iirethanght felony, it is usual ornecessDr,
libel all tbe circurostances from which
forethought may be presumed, especially w
the ipeciti facti is chart'ed iu tliat mauKr^
affiirds the presumption of farethought, leM
forth, that the wound was given withonl
least colour or cause of provocalinn on tbe p
of the defunct at tliut time. Neither can ic
thought unfair with regard to the pannel, 9
if he had eny relevant ground of exculpalis
would hare access to prove frienilship witb t
defunct, to take off any charge of preeeda
quarrels, whereof lie could nut be ignora
And still there must be less ground of cot
plaint, where no good reason of exculpatioa
offered, whereby the panne] can be allowed
adduce proof, which it is believed is, witin
coniraihclion, the case upon Ilia first bnncfc
the libel.
As tu tbe two last branches of the indil
ment, it was allqied, <' That several circu
stances attending tbe fact complained of m
concealed, which, when opened, afforded ll
pannel plain and obrious defenoea ; and tba
fore it was infortnad. That tbe pannel, a ps
sun disposed to peace, and in entire friendsk
with the defunct, chanced to be in compai
with him about the time chaived in the indii
ment, with one John Lyon of Bridgelon, m
others: that firtdgeton gave him t^e faigfai
the pannel was in hazard of perishing, bail
extremely drunk : that getting up, heated wi
liquor, and so extremely provoked, he drew I
iword, and pursued Brirlgeton, and that tbe i
funct thrusting himself between them, casual
received tbe thrust aimed at another."
From tbeao circumstances, it was pled I
the pannel, "Thatif he did kill the defunct,
was a mere misadventure, raiher a misfortu
as [than] a fault, and in no event could suhje
liim to the jirno ordtnuria ; fiirthat, Imo. .
these circumstances had he killed the said Jol
Lyon of Bridgeton, thepain of death could n
"iBve been inflicted either by the law of Go
he common law, nor by the municipal law
Chiskingdum, neither by the laws of other we
^overnM realms ; pariicularly by tlie laws
our neighbouring nation, in regard the fact w
done of sudilenty, by a peivoa in diink, ai
highly provoked."
And, Imo. As to 'he lavr. of God, chap, x]
. 13, of Exodus was appealed lo, where it
lid, " that if a man lief nt in wait, there w
I he a place appointed whiihrr hesbould fly
hich seemed lo require forethought, Ai
IC xxxvth chap, ot Numbers, ver. as, wbe
was said, " That if any one thrust anoth
suddenly without enraiiy, the congtegstk
— - to judge between tiio slayer and the n
rerofhlwd;" fron whick itwtMJdiea
fir iktMwriiT qfihe Earl nf Strathmori*
A. D. 179&
in
dHgbterof HuMcntj was not punishable
lAii it was aniwerady that in the law of
Aegfoeral rale waa, •' Wboeo sheddeth
hmti, hj man aball his blood be shed :
iAe hand of man, and at the hand of
^Mi*! brother, and at the hand of every
avilbe life of man to be required/* Geo.
fik That by the law of Muaen, death of
■kf was plainly capital ; nor had the
itft the benefit of the city of refuge,
etbe slaughter was mere misfortune,
, which was plainly the meaning of
■riiiB Exodus, ** If a man lie not in wait,
H Mirer him into his hand ;'* which
iHivith any propriety be understood of
fhto committed, where the intention and
p'aHecedit ictum licet non congrcssum.'
rflkii matter b clear] v exphiined in the
^ of Numbers, where he who smites
■ Bitmment of iron, is called a mur-
I lad where it is said, <* That he who
ivitb a throwiufi^ stooe, or with a hand
Btf wood, wherewith a person may die,
idK, the marderer is surely to be put to
' And then the law proceeds plainly to
f OSes, where death ensues from strokes
■H of a weapon not deadly, and there
MS indeed hatred and enmity ; but if it
mddeoly and witliout enmity, or (which
■kible) in the OSd Terse, «' With any
■herewith a man may die, seeing^ him
ri was not his enemy, nor sought his
; then the congregation was to judge be-
ie slayer and the revenger of blood."
ahich it is plain, that slaughter upon
ij, even without forethought or previous
't VIS capital by the law of Moses, if
sod was given with a lethal [deadly]
I, except when it was tlone ny mere
Lu by throwing a stone whereby a man
k,the person who threw it seeing him
iriso at no time was his enemy, or sought
m. And this is the case mentioned,
iz, rer. 4, Deut. where it is said, ** Who-
iflu his neighbour ignorantly, whom
sdnnt in time past" (which is limited by
aple immcniiately sulijoined to homicide
asiial), <* shall fly into one of these
uid lire." Now, in the present ca^e, the
of tlie weapon and of the wound are
d clearly exclude founding with any
upon the disposition of the law of Moses,
the <]uestioii were of the pannel's
i( the benefit of the ett v of refuge. But
is it an arg^ument of nny force to plead,
iere the benefit of tlie city of refuge
allied, that by the Jaw ot nature the
WM not capital ; for the revenger of
ould never hav» been tolerated to kill
; the city of refusre, where innocent
ras spilt, whereby the laud must have
lluted, and the stil>j(.>cts were permitted
, so notorioiiKly to break in upon the es*
d Jaws of nature ; and therefore,
it is an argument of unavoidable tbrce,
itraver, by the law of Moses, capital
Iiunishments are allowed, such punishments ara
awfnl: But the argument is not of equal
strength, that where the powent of the law wer^
suspended by the jui utjfii established by posi-
tive precept, that therefore, in countries whera
there is nu such privilege, either by tlie laws of
God, or the laws of the land, that there tha
pnniahment is not to be capital, where the jug
asyii could have been claimed.
2do. It was contended, '* That by the com»
mon law, not only dolus bnt propontum wai
necessary ; and that slaughter committed isi-
petu et rixd were not to be punished capitally.*'
And to this purpose, the authority of the lean-
ed Voet, was cited, who seems to say. That
in rud, if the person cannot be discovered who
gave the deadly wouud, the ordinary punish-
ment ahonid not take place.
But when this matter it considered, it ia
plain there arises no good ar]gument for the
pannel from the common law: For tbongb
tbeva is a difference to be made' between pra»
potiimm and machinaiio prameditata, and aud-
den passion and beat of drink, determinmg tht
will to commit the crime ; yet as laws were
made and became necessary, chiefly from the
depraved passions of mankind, they cannot af-
fonl a sufficient excuse against the ordinary
punishment of an atrocious crime ; and there
IS dolui^ when a crime is even committed of a
sudden, although there be no forethought: fete
it is commonly said, that op|M>rtunity makes
the thief, and theft is committed impetu^ never-
theless not without dole. Nor is it necessary
to prove or libel a forethought in the commis-
sion of the crime. In the same manner pas*
sion or provocation may unfortunately deter-
mine the will to the commission of a horrid
crime ; but it would be of dangerous conse-
quence to allow of bloodshed under colour of
passions which men ought to subdue, or of
drunkenness which they ought to avoid, or of
a sudden vicious turn or mind ; and therefore^
in the Roman law, whoever committed
slaughter dolo malo, whether deliberately and
upon forethought, or of suddenty, was to be
punished ex lege Cornelia de Sicariis . And to
shew that it was sufficient, that the design
should only precede the act from which death
followed, and not the meeting of the persons,
as the acts of the mind are only to be known by
external circumstances ; the kind of weapon,
in the same manner as in the law of Moses, was
sufficient to found a presumption of sui!li pro-
potiium, as, joined with the act of killing,
brought the manslayer under the pcena legis
Cornelia!: So in the 1. 1, § 3, ff. ad le|vem
Corneliam de Sic. it is said, ** Si giadium
strinxerit, et in eo percusscrit, induhitat^ occi-
dendi animo id eum admisisse ;'* and if prior
forethought had been necessary, the kind of
wea|K)n could not possibly have foundinl a suf-
ficient presumption : But as it manifestly made
appear the intention io kill, whether thai intiMi-
tion had its birth from passion or drink, it «%as
voluntary slaughter, done dcditd vperd^ Hud
tiierefora to be pnniiihed capitally. And the
TO]
9 QEOKG^E II.
IVial ^Jamtt Carni^t
[
fUiMge cited from the learned Voet, rather I
lNHi6nii« this doctrine, That if in rixd, which
nuaC auppoaeauddenty, the peraon who inflicts
•d the mortal woand wan diaoovered, he waa to
be aubjected to the ordinary paniahment And
the aame author, § 9. of that title, obaerres,
That though aucb aa commit alaugbtcr, calore
irmcundUf may be aaid impelu deUnquere;
yet there, " neque judicium, neqne aaaenaua
•oimi, Deque foluntaa deeat ;" and saya, That
A peraon profoked bv verbal injuries, how
great eoever, waa not nee from the p^ena ordi"
iiaria. And the truth ia, if paaaion and pro?o-
eation were aufficient to excuse alanghler, K
were in ?ain to lav down the rulea ao anxioualy
conceited in the lawa conceminfr the <* mode-
ramen inculpate tutel»," where the alayer
muat proTe that he waa " conatitutoa in peri*
culo Tite.*' And had the caae atood otherwise
in the Roman law, it could never hare been
doubted, when jealousy waa the rage of a man,
and adultery the higheat provocation a-^inst a
husband, and a real iniury ; the qneatioo could
■ever have been stated to be determined by the
emperor, aa in L 38, ff. § 8, ad le|pm Juliam de
adult. Whether a husband, ** impetu tractus
doioiia, uxorem in adulterio depreiienaam in-
lerfecerit," was liable to the poena legia Cor-
Beli« de Sicariis P And who, by that decision,
upon the peculiar circumataucea of the case
wtta ezeemed [ezempteil], and never ihelesa
made auhjenl, si loci kumilii, of being condemn-
ed ad opu9 perpetuum, and if honestior was to
be condemned rtlegari in iusulam. But as the
case muat be determined uiion the law of Scot-
land, il ia unnecessary to dwell too long upon
the argnmenta drawn from the Roman law.
3tio, It was contended for the pannel, " That
by the law of Scotland, slaughter and monler
were of old different apeciea of crimea, and
only murder committed upon forethought fe-
lony was properly computed murder, and
punished as such ; btit tliat alaugbter com*
mitted upon suddenty, or chaud tnelle, and in
rijrA^ was deemed only homicidium culposum^
and not punishable by death." And to support
tliia position, several acts of parliament were
appealed to, by which it was statuted, that
murder was to be capitally punished ; kmt chaud
mellff or slaughter comtxiitled upon suddenty,
waa to be punishable according to the old
laws : and that in this case, if the pannel bad
even killed Bridgeton, at whom he aimed the
thrust, in the circumstances above set forth, it
waa not murder u|Km forethought, but upon
iuddenty and high provocation.
To this it was answered, That thia doctrine,
so directly contrary to the received opinion,
had little countenance from tite old lawa and
acts of parliament, less from the constant
practice before the act of parliament king
Charlea 2, in the year iG61, and stood in plain
contradiction to tliis last law, and the constant
practice and repeated decisions of the Court of
Justkxary from that time down to tbia day.
By the old kw, particularly chap. 3, of the
ifttitalatea of kiag Robert 1, intitUed, Men
condemned to the Death ehonid not be i
deemed, ** It ia statoted and ordained, |fif a
man, in any time Coming oc bygane, is co
vict or attainted of alaugbter, reif, or any otli
crime touching life and limb, common joati
shall be done upon him, without any n
some." Here slaughter in general is mc
tinned, and justice waa^o lie done upon t
person convict of it, and the punishment
Uie title was plainly dcAth : tof that, at coi
mon law, alaugbter in ti^eneral waa capH
The next Mtragraph does indeed save the kiuj
power (which muat be the power of pardonim
and the liberties granteil by the icing to I
kirk and kirkmen, and other lorda; whi
muat be underatood of special immunities
the caae of manalaughter: for no privilege «
to protect againat murder upon foretbougl]
and the exception confirms the rule.
By chap. 43, of the atatutea of king K
bert 3, it is atatuted, " That na man uae ei
destruction, hershipa, burning, reif, alaugfat
in time to come, under the pain of tiuel
life and gooda :" whereby the pain of del
ia clearly made the puniahment of alaugbi
in general. And in toe im mediate subseqoi
chapter, the aheriff was to take diligent inqi
aition of destroyers of tlie country, orencn
had deatroyed the king's lieges with herahij
slaughter, &c. and was to take bail from tbo
if arrested, to compear at the next justii
ayr ; and if bail waa not given, the sheriff a
to put him to the knowledge of an aasiz
'* And gif he be ta^nt with the assize for <
an trespassour," it is said, " He shall be ofl
demtieu to dciath :" which seems only
relate to manslaughter, and not to mort
upon forethought telony, which was one
the pleas of the crown, to be tried ouly beA
the Icing's justiciar ; as i* evident from dH
11, kiog Malcolm S's laws, and chap. 1
and 15, whereas slaughter might be tried
the aheriff, where there was a certain aocus
as appeara from book 1, of the Uegiam Al
jestatem, chap. 1, § 7, 8, 9.
There are sundry others of the old statut
that seem plainly to pre- suppose that alaog
ter was capital, and particularly these of Ale
ander 2, chap. S, § 3, 4, 5, 6. And so Ske
in his Treatise of Crimes, tit. 2, chap. 6, sa]
'* Tliat alaugbter in rixUf or chaud meiie^'
generally punished by «leath, and confucott
of the moveable ;;:ooda pertaining to the tn
pasHOur; but with this dilforfcuce, that t
girth or sanctuary wan no refuge to him w
commits slaughter by torethoiight felony, I
he should be delivered to the judge ordmai
to undcrly the law:" which plainly appei
from act 23, pari. 4, Jamca 5, whereby nil
ten of girth are ordained to deliver up su
peraDus as are guilty of murder upon foi
thought felony. An(l it is in vain to foa
upon Law 90, |Nirl. 6, James 1, which m
in the end, ** Gif it be forethought felony,
shall die therefore;" because the act relatei
ail manslayers; and though that partiea'
and moii atrocioai ipeciei be mentmied,
t/J Jar the Murder qfihe Earl of Straihmore. . A.D. 1728.
Ar winch the maiJeier shookl die, yet
■ffonmC will not hold, that therefore no
rad of sUoghter was capital : for it is
aaiii iu the geoeral, that if the slayer is
with red hanil, the law shall be done
pitfaia that son ;. which cannot be
of a crime not capital. And sir
Maefceoane, iu his obserr Ations upon
lysg **Tbis may seem to imply, that
4k mi for murder committed wifchoat
felony ; but this holds not in our
BMirder, though committed without
-^hft fehiny, is punishable by death,
eem/L k vas either casual, or in self-defence."
Tie act 51, pari. 3, James 1, was im-
pnpsrij fiwiided on by the pannel's procura-
IMS ; Mr that act does no more than extend
Ibt Mbesee between forethought felony and
dmad wteUe to all transgreisions as well as
imklar; as sir George Mackenzie obserres
^pi that law, where he says, That cJiaud
■kar hamieidiwn in rixd commissum, is ca-
lU if oar present law.
^ crimioals who resorted to, and took
in charchca, had protection, thou|[h
tnmta were capital, is eitremely plam
chap. 6, of the statutes of K. Alez-
f, where it b said, ** That thie?es and
who fly to haly kirk, if moved with re-
he confess that he has heavily
I for the love of God is come to the
of God for safety of himself, he shall
nee in this manner, tfiat he shall not
fife Bor limb, but restore what he had
ad satisfy the king, and swear upon
Evangel, that for thereafter, they shall
* BMumit reif nor thef\ ; but if he declared
" ianocent, he was to be tryed." And
ii 4i Imi paragraph of that chap, it is said,
**U9nn» noanslayers, &c. if tbey fly, in
nascr Aresaid, to the kirk, the law afore-
mHikaHhe kept and observed to them."
Awe seems to have been this other dlflfer-
■ee MO, by the books of the old law between
■arte' upon forethought and slaughter, that
iW Inal of murder was summar, whereas
■saiiaaghter could not be tried till af\er forty
^yi, as appeals by the statutes of llobert 2,
fcwa cbap. 3, to chap. 9.
After the Reformaiioo, when i\ie jus aiyUy
Watffiy given tu churches, dro|ipeil, the dis-
liacfaoB between murder and inauslauf^htcr
«is looked on with less attention, and libels
•cieoommonly framed indifferently, for mur>
^, aod slaughter in general, without any
■tatioo of furethought felony ; nor was it
ecr objected, that malice or premetlitate ile-
^ was requisite to make the crime capital :
M erimiojiu were punished to death, where
the proof there was not a colour or pre-
of forethought, or any premeditate de-
as will appear from looking into the
. — ofadjournai. And many instances nii^ht
wgifco, particularly in the case of Jean
famt ajFaiDst William Eraser, the last of
My, ifrii ; where the pannel was condemned
^ as rstrajudicial confession, admiiiicu-
«UL XVII.
lated with other circumstances ; in which he
set forth the fact, that the tiefunct and be had
some little quarrel about a staff; and hearinir
that lie had murdered hia brotiier, he came
into a house where the defunct was ; and that
either the defunct, or some other tliat was by,
took the pannel by the arm, to hold hiiu:
having freed himself, he aimed a stroke with
a whinger at the defunct's arm ; but missing
it, he stmck the defunct about the pap ; and
upon this, proof, he was found guilty, and
executed.
In the case of Bruce agrainst Marshall, the
Srd April, 1664, slaughter was libelled, and
he was condemned upon his own judicial
confession : from which it appears, that he
was so far from having any forethought, that
he suffered not only the greatest provocation
in words, but was even oeat with hands and
feet by the defunct while he was on the
ground; but at last getting up, and (as the
confession bears) being overcome with passion,
he drew a knife, and struck at him in two
several places of his body, whereby be died.
And upon this confession, where there was
tuddenty, provocation and passion, he was
brought in as guilty, and condemned to be be-
headed.
The law remaining somewhat ancertain con-
cerning casual homicide, and there being no
longer any beneflt of girth as formerly ; ia
the year 1649, an act was passed during the
usurpation, for removing all question and doubt
that might thereaAer arise in criminal pursuits
for slaughter, onlainini^, that the cases of ho-
micide aAer-following, viz. casual homicide,
homicide in lawful defence, and homicide com-
mitted upon thieves and robbers, should not
in time coming be punished by death, not-
withstanding any laws or acts of parliament,
or any practick made heretolbr*?, or observed in
punishing of slaughter. And this passi'd int«>
a law after the Jtestoration in the ^car 16(31 ;
and at the same time, all decisions given con-
form to this act, since the 4th of February,
1649 years, are dcrlared to l>e sufRcieut to
secure all parties interested, as if the act had
been of that date ; which was necessary, be-
cause the acts tiurin^f the usur|>ation had been
rescinded: and tiiis law has ever been looked
upon as the standard. And the practice of
the Court of Jusiiciury, since that time, clearly
deuionstrates, that slaughter of suddenty, and
slaughter upon provocation, which could not
be brought under one or other of the particu-
lars there mentioned, have been taken to be
capital.
The procurators for the pannel here <d)serv-
ed, ** That though in the cases there mention-
ed, the law oi-dained slaughter not to he capital,
yet it neither SHid, nor supposed, that the for-
mer law, whereby paunels were entitled to
plead afi;ainsi a capital punishment, was there-
by abrogated, but only statuted in the caves
there mentioned."
Tu this it was answered, that the iiarrativs
of the statute was for removing ot all ^utfttioa
6
88]
1 6EOR6E IL
Trial of Jamei Canui^
[81
•Bd ionU thit may Mmt thereaAor io eriumial
riuits fortlaughier, nd oooKqoently cumol
nppottd to liATe left doabCfol cases, ihat
the paimel'f proeonton Hiiist adnil were
not so dear as easaal bomieide, and homicide
ia defeace: nay, the law seems to suppose
prdty plain ly, that all slaoghter by the laws
and actfc of parliameDt, or practicks, was capi-
tal, not declaring what was law from any other
period than the year 1640, but eiiactiog' the
same with a nan obftmnttf and judging it neces- .
sary to confirm the decisions that had past,
conform to that act dnriog the usurpation,
which would bare been rain, if it bad not
been at least doubtful, whether casual homicide,
homicide in lawful defence, and slander com-
miitod upon thieves and robbers, did not sub-
ject those guilty to the pain of death : and if
those degrees of homicide were so much as
doubtliil, it is not possible to conceire that
ekaud melUf or slaughter committed, dedM
oper£t though without IbrKhought, was, by the
law of Scotland, not capiul. Or if it should
be supposed to hare been doubtful, whether
tliese last dej^rMS of homicide were capital :
that the legutlature, upon a narrative, that all
question and doubt that might arise hereafter
in criminal pursuits for slaughter, should be re-
moved, would have enacted in the clearer cases,
with a fion obiiante, and left the more difficult
In the dark, as surely the greatest advocates
lor slaug^liter on snddenty must admit, that, at
least, it is more culpable than either homicide
Bicrely casual, or homicide in lawful defence.
The argument drawn from the rubrick of the
act, which mentions degrees of casual homicide
only, can conclude no more, than that the title
Is imperfect ; and it would be resting too much
upon an argumeot d rubro, to make it defeat
what is said in the law, that all questions con-
eeminfi^ slaugliter were thereby to be removed,
and which opposes casual homicide to homi-
cide in lawful defence ; and conseouently can-
not under the u'ords, '* casual homicide," com-
nrtlieiid all slaughter not upon forethought fe-
lony. And sir George Mackenzie in his ohser-
yations upon the act takes notice, that the title
is very ridiculous, and consequently no argu-
ment can be drawn from it.
One thing it may not be improper to notice,
9s, that if killing by forethouglit felony was the
only species of slaughter capital, the crown
was disabled from pardoning any capital
slaughter w hats«f mover, which does not appear
to have been tlie o|iinioii of our lawyers.
As to the drcisious subsequent lo this law,
they will he found entirely agreeable to tlie
doctrine now laid down ; sir George Mackenzie
observes, that though many lawyvrv are jiosi-
tive, that though homicidium in rira, even
where the author of the plea {» known, may
by ihii rigor of law hv punishcil by death, yet
that no contitr}' ii^c^ litis rii^or ; yet he remem-
brrcd, that in William [ioiigluss*s case, this
was urged, and albeit it was not proven that
he was the killer, Vf^ the assize found him
4(oiIty,.aiid ht thcc«i](iuD died. This is a case
nsore fiivooraUe, than where the peraon thil
gave the mortal woond is known, tfaMHi^h gtwm
suddenly, and even upon provocation; wai
therefore shews what our law is, and with
little reason the procuratora for the nan»d
maintain their argnment upon the law of Seat*
land.
In the case, his majesty's advocate agwMl
Nioulsoo, the 24tb June, 1673, murder «ad
slaughter, without forethought, were cbaifd
upon Nicoisoo, the pannel $ and hia pioo—
tors pleaded the benefit of the act of parliaml
anent casual homicide, in the aef eiml
thereof, he being in a condition that he
not able to remmiber. To this it was
ed, that the defence was not relevant, in
the homicide could not be said to be
such as Uie case of throwing of stones mm
dikes, and accidentally killing a paasesfvi
and the pannel having afterwards propooed €
defence, that being in use to carry a gwB ss'ii
fowler, and calling accidentally for meat ts li|
dogs at a mill, the defunct fell upon himy sal
offered to secure him as a French soldier, sslt
to be one ; in the stm^e, his gun being km
bend, went off, and killed the defnnct: ~~^
the libel and defence were found relevant,
it appeared upon the proof, that Nicolsea
drunk, and that there was no previous qiisnrii
but taking exce|»tion at somewhat the drfsMl
said, he shot him with his gun ; and bv ihi
verdict of the assise, '< he was fonml gnfty d
the slaughter committed u|M>n the defqncl/j
and sentenced to have his bead struck off.lv
the Grass-market ; which shows that nsilh^
drunkenness nor suildenty is a relevant dffiMJ
against the jMtaa ordinana in slaughter.
And, in the case of Murray contra GiM
10th June, 1678,- Uie lords '' found the IM
relevant, and that there was no necessity of sq
distinct probation for pro? ing precogitate atij
lice;" which clearly shows that slaughM
other than upon forethouglit, was capital. Am
to show that provocation and passion ars. ail
received as defences against the ptma 9rdmm
ria, a multitude of decisHHis might be bremi^
particularly in the case of Aird, who was m
dieted in 1693, for the slaughter of AgWi
Bayne, having given her some strokes oo ds
side and belly with his foot, by which sb
fell into fainting-fits, and immediately disd
The defence was, ** great provocatkm and e»
sual homicide :*' provocation, in as far as shi
threw a chamber pot in his face ; and whea hi
gave her hard words, she and her neighboM
fell upon him, and beat him ; upon which %
gave her the strokes above mentioned. And i
that trial it was argued, there was no snisil
occidendi^ no previous malice, no mortal wea
pon; and the texts from Scripture urged I
ticfencc of the present pannel, and the arjga
ineuts from the civil law, and from onr m\
acts of parliament, were urged : neyerthcb
Uie lords <* found the liliel relevant, rsfil
the defences ;" and, upon the proof, he i
sentenced to die.
In the case of Williaa Ganaichael ie 108|
•] Jar the Mturierofthe Bart ofStratltmore. A. D. 17S8.
[W
WM fonnded mi to excuse a p€mm
and Ibffethoagbt wst neither libelled,
I ; and the loide found the libel rele-
L ■poB the proat'y he was sentenced to
1095, Qeoige Cnnring^, writer in
raa indicted for the crime of moro
lUffhtcrof Patrick Falconer; the
' oBeted for the panael, upon the
tba old law, between forethou|rht
rl/e, were offered; nevertheless the
Wbh foond relevant, and tlie assise re-
lariavcrdietgniltyof manriaughter; upon
sAiih ha was coodemncd to die.
MthacBseaf Burnet of Carlops, the S2d
htmru 17 llf thosgh adefonce was sustaiued,
l<*siftsl withowl foretlioni^t was found re-
ImsI: md in thai of Hainiltoa of Green, the
Sib Jane, 1716, the pannel offsred to prove,
An ha was aeddeBtally at the house of Tho-
. of whose murder he is accus^i, at
iihellcd, with some of his acquaint-
p .ad had no deadly weapon aloo||f with
tof that hm became inebriated to a great de-
pBbSBd havii^ left the house, and returned to
itti the slip or cover of the sheath of a sword^
ii drfanct gave him most indecent, injurious
■i HBrrihuH laugnage, and persisting in it,
poshed, or struck at him with his
having the scabbard thereon, that he
• to beKeve had a crampct upon it:
_ nil] more and more provoked by re-
IM^s^iioaa words, to protect himself from
Mhv iiwalfiice he had reaaun to look for, the
pssi tfiU raosaiiiiii^ on horseback, the de-
mm iwhad bimseU upon the sword. And
tkii orcHBistantiate fact was offered to be
f. Nevertheless the libel was fouod rc-
IwM^aaA the pannePs baill dcfencus re|>clled,
■^ spOB ibe prcMif, was sentenced to have his
^ud swwcd from his body : and was accord-
t'Uaded.
iheeaae of Thoouis Rots and Jaifrey Uo-
kM% the SOth July, 1716, it was pled tor the
isneli, that being recruits lately come from
Mi^mi to Scotland, and not knowing the way,
Ihey Mkcd the defunct tbe road to ^inbun^h,
^' ' ' to shew it, and one of tbe |Min-
Mb cxp(«talating with him, why he treated a
th(
c:
so, that came to serve the king ? He
very disrespectful words with respect
lahis saajesiv ; and one of the pannels having
' bioi Tiflain for such opprobrious ezpres-
be caoie up to Ross, and with his fist
bin a blow on tbe face, and then pulled
down to the ^ond, and beat him with a
slidi, to the immioent danger of his life,
f. That he should never go alive out of bis
c and Roberts having come to his assist-
, aad lesooed him a little ; Ross, tbe pan*
fate the dcAioet a wound with a knif^,
Mof be died. Ross pleaded, there neither
■ar eoald be forethought fokm v, or nreme-
■ Baliee, agahist a^ person whom lie bad
V sees before: thai it was committed upon
ttiinty : thai be had the highest provoca-
t^bnh iMhal mi mIj Neveitiw)M> by tbe
interlocutor, Ross, the pannel, his giving the
wound was found relevant to infer the pain of
death. And tlie defence from provocation by
words, and receiving a blow on the face^ bch
ing pulled down to Uie ground, and beat with
a great sticJc to the danger of his life, jointW
sustained relevant to restrict the libel to an arbf*
trary punishment, was found to be elided by
the reply, that, at the time of giving tbe woand
te the defunct, the defunct's bands were behi
by Jafirey Roberts, the other pannel. From
whence 'tis evident, that slaughter upon sud«
denty, in rvrd or chaud melle^ and by a person,
who had received the greatest verbal and real
injuries, even beyond that of being thrown into
the kennel, of the nature that is set forth into
which the present pannel was tbroi^Hi is by that
interlocutor found homicidium doloium^ ami not
cuiposttm^ but capital.
And, in a very late trial, in the case of Da-
vidson, the soldier, slaughter n|Hin the greatest
soddenty was sustained, and he was upon the
proof executed.
And the judgment given in 1717, in tbe rase
of Brock and Lindsay, determines this point be-
yond all dttipute. These pannels were ac-
cused of the murder of one Anderson : and ai
the libel did expressly set forth a quarrel and a
struggling betwixt the two pannels and tlic de-
funct, which made it ilirectly an homicidium in
rix& ; 80 the pannels, at least Lindsay, offered
a pretty strong defence, namely, |liat the de-
funct, without any provocation, just led them,
and struck at Lindsay, and beat liini down to
the ground ; and it was while thi'y were on the
ground, the wound was given. And tbe de-
fence was pled for two several pur|iotics : First,
that the crime was not capital, because no fore-
thought felony. And, 3dly, to entitle them to
the act of indemnity, under which all homi-
cides were included, except willul murder, and
slaughter of forethought felony. And the in-
terlocutor uiion the relevancy v%asinthir words,
" Find the pannels, or either of them, at the
place and time libelled, their giviug Archibald
Anderson a cut or wound in the neck or throat,
or other mortal wound, with a knife or other
mortal weapon, where<if he, the defunct, soon
thereafter died ; or that the said pannels, both
or either of them, were art and part therein, re-
levant to infer the pains of death, and other
pains libelled : and re|)cl the liaill defences for
the ]>annel, excepting that defence pled u|>on
his majesty's graciouti act of indemnity ; nuent
which the said lords 8upersede«l to give their
judgment, till the conclusion of the probation,
and return of the verdict."
This then is an undoubted authority, that
homicide may, by the law of Scotland, infer the
|iain of death, though it be neither wilful mur-
der, pro|Hfrly so Hpeuking, nor furethonsrlit fe-
lony ; otherwiKe the Court could not have found
the crime relevant to inter the pains of death,
and at the same lime reserve the consideration,
whether tliero was any forethought felony, or
not.
Upon this interlocutor a proof wna adduce4e
87] 4 GEORGE II.
and a verdict returned, finding Lindsay, one of
the panneh, guilty ; and yet the Court havinj;
returned the cousidcratiun of the indemnity,
found him inlitled to the benctit of it : that is,
in other uronlv, they found the crime was nei-
Ibrr voluntary munler, nor slaughter of fore-
thought ielony. 80 that it m plain, had not the
indemnity intervened, Lindsay must have suf-
fered death for killing, though there was no
previous design of forethought.
And an iiitcrlocntor H)>on the relevancy,
nmch to the same purpose with the former one,
was also pronounced, the 31st of August, 1721,
in the case of Samuel Matthews, a soldier ;
where the libel was found relevant to infer the
pain of death, reserving the consideration of
another act of indemnity then pled for the
pannel.
It would be in vain, and lengthen a psper al-
ready too long, to run through all the decisions
which shew, that neither the drunkenness of
the nannel, nor provocation given him, nor the
suddenty upon which the fact was committed,
can afford a defence to the pannel, to exculpate
the slaughtei', or lessen the ordinary punish-
ment ; and therefore the pyrsoers shall leave
the first branch of the defence with the lords,
with this observation, that if it is really founded
in law, by looking into the books of adjournal,
one would think our law has hithertp been very
ill understood.
Sdo, It was ofi*ered, what indeed is alone ap-
plicable in the present case, " That if the pan-
nel intended only to wound or kill Bridgeton,
and by misadventure the deceast earlof fiSrath-
more was wounded, and of that wound died,
the pana ordinmria was not to be inflicted.'^
It was answered, that according to the rules
of the civil law, he who intending to kill one,
kills another, is nevertheless subject to the
p<na ordinaria ; so Julius Clams delivers his
opinion in his Receple Sententifs lib. 5. §
homiciilium, N. 6. where, aAer having taken
notice, that the contrary was indeed the opinion
of some, adds, ** 8ed cert^ ego si casus contin-
geret, illi facerem caput amputari." And the
learned Mathipus, lib. 48. lit. de Sicariis, § 12.
^ives the same opinion, observing that the act
18 consummate, there is animus or design of
killing, and death: tliatit would be aridiculoua
defence, that the pannel intended to steal the
goods of one man, but happened to steal those
of another ; or against adultery, that he in-
tended to defile one man*8 wife, and happened
to light upon that of another « and he thinks it
is as unrcusonable to hope for safety from this
defence, tlint the iiiraniug was to kill one, but
another receiveil the stroke and died.
Voet in his commentary agrees with them,
lib. 48, tit. K, ne. 2, where he says, that there
is ro diilemct;, " Sive vulnua in titium di-
rectum ab eo declinatum, Mievio in proximo
•tanti Jethale fuerit, sive dianiqne oocidatur qui
csedis impediendcB causa, aese medium inter
agressorcm et defendentem interposuerit : quia
pnevalet, quud principale est, nee error talis
t^Ui^iBt 96cide&di aBioioDi amcadea kge
Trial of James Camegief
Cornelia vindicandam." And for this ne
founds upon the I. 18, § 3, et § ull. ff. de
and 1. 5, s. 1, ff. de servo corrupto ; bn
the authorities of Farinacius, qua»t. 1 '
15G, et 157, as also, that of Fachinseus,
zovittsand fierlichius, and others. An
opinion obviates the defence, as put in it
favourable light, which however would
very delicate proof, that the defunct
himself between Bridgeton and the p
and receivcMi the stroke aimed at the othc
The learned Sande, lib. .5, ti^. 9, dc
which has this title, ** Qui alium pi
occidit, nihilominus ordinaria, leg. C
poBn& afficiendus," says, after agreeing
according to the Roman law, such error
not have excused the murder, ** Hoec sei
ubique usu obtinuit, et secundum eam, r
mortem condemnatus etdecapitatus est,'
November anno 1621; and there alleii^
authority of Gomesius, Emanuel, 801
Carolus Moliooeus, " Qui alios cumuli
his book ad consnetndines Parisienses.
sir George Mackenzie in his Criminal
Murder, i 9, says, after stating the qu
" Yet 1 think he should die, seeing the >
of killing a man, and not any particular r
murder ; and the killer intended to defac
Almighty 'a image, and to take from the
subject."
It is nothing to the purpose, that some
authors who write upon the Roman la
of a difi*erent opinion, in a case not detci
in words by the text, when the bulk 1
commentators are of the other side, th(
recent and of greatest authority ; and v
appears to be received as a rule by the p
of nations, that the ordinary punishment
be indicted. And it may not be impro
observe, that the cases where lawyers <
from the received opinion, are generally
tifiahle homicide, that is, where the bys
was killed, when the killer intended to e
his purpose in lawful defence, and not
micidoi culposo, which is the highest tlu
nel's case could possibly be pled upon pn
tion, according to any opinion delivered
strongest advocates for the question the
pleads.
That it is not always necessary, that \
tention should be directed towards the ro
done, in order to inflict the pain of death, n
evident from looking to the xxi. chap, of
ver. 22, and 83, where, " If a woman will
is hurt when men are striving, and m
follow ; life is to be given for life.'* A
kind of killing now in question was plain!
as, according to the law of Moses, woii
have intitled the slayer to the benefit •
city of refuge: For thouirh in the xir
of l>eut. ver. 4, " Whoso killeth his neif
ignorantly, whom he hated not in time
is said to be intitled to that privilege ; y
is limited immediately with an exam
manaUugbter merely caaual. -
The proenrators fiir the pannel in
«« That Ibia kind of kiUing wai inttrdy <
m
Jar the Murder of the Earl of Strathmore. A. D. 17^ [90
bfwd, and witboat the intentioD of the party :
1m m the caw of Musod, in the year 1674,
T CariopB, ami several otheni, where it
there was do intention to kill, the pu-
mitiieateii."
k«iaaanrered,That where, from the nature
I, and meant by which the wound
^ivtai taking all the circumstances to-
hoe was no eridence or presumption
fsancl intended death to any person
; and the propontum was neither
■or oonld be presomed, as in the case
jind in that of Burnet of Carlops,
having swords, only struck
, h was held as approaching towards
homictde. But tliat can never be
I, when the wound given as libelled
swas clearly mortal, and the instrument the
Mrt Icfbal [deadly]; and the decision of
Mipa, cfCD with that difference, stands single
kftabsaks of adjournal.
Ilvas fiirtber contended for the pannel,
^Hkh animuM oceidtndi^ and death follow*
1% tn admitted to be necessary, in order to
in the highest punishment ; so as from the
mentioned in ezculpation, it is
there was no intention against the de-
Aod it cannot be known whether the
ei dea^irn was to kill Bridgeton, since
not killed, or if the wound w<Mild have
liMBvtal, bad thesword reached him ; and
MH^BOCly the necessary reqnisites to const i-
ftiiaaBnler, were not to be found here."
h was answered, that the invasion with a
—Id weapon, with which the defunct was
yu,«as a sufficient proof in law that the iii-
ndw iolraded to kill, since death followed ;
■i ibtt there is no wounding by measure,
HtcRtuiy not to kill. The act implies chlus
isdndice, which, with death following, makes
■■ds; inihout any farther proof of an act of
lirai^jlikill ; and tbere would have been as
Uretideoce that the pannel intended to kill
Bri^noo, if be bad actually received the
■•viand died, because it was possible the
tsvri night have pierced farther than he in-
fesdid ; and if lie did not design to kill Bridge-
l"a. Mil killed the defunct, he must have been
6eper>6n against whom the mischief was di-
icned. As indeed it may be argued from the
fi^and drunkenness pled in excuse and de-
nee, it is possible that er rabie he intended to
Ul vhomerer he met with ; and if rage from
fiKino 3Ri| drink is alloweil to palliate iininier,
I iiioipouible any one can be fiafe. And tiiet^e
wif drciimstances, without which the defence
bs Bot a colour, roust, at the same time, give
that the |innners intrniion o\' {uir-
Bridgeton with a sword, was to kill and
him ; for be pleads them to excuse his
of the defunct, as sufficient provocations
feisdte him to it.
Tbc law of England was freqiirntly inen-
^fi by the procuraturs for the |tannel in the
llHdiag, as what won hi Justify Mic orgnnients
^a^^htfor tbem ; and |>aiticularly it was said,
^TkA lU kiiliog of a suddenly' by tliat law,
was only manslaughter, and not mnrder." But
the contrary will appear, by looking into
Hawkins's Pleas of tiie Crown, book 1, cliap.
31, of Murder, where he clearly distiaguishes
between deliberate murder, audi murder con-
mitted on a sodden : And in this last case, ma-
lice prepensed is, by the law of England, often
implied, as lord chief justice Keylinge* lays it
down, Begina v. Mawgridge, and justifies it
by the case of Hollo way, who espying a hoy
that came to cut wood, took him, and tied hiio
to an horse's tail with a cord, and then gave
the horse two blows, whereby he run away«
and broke the boy's shoulder, whereof he dieo;
which must have been sudden, and was ad-
judged murder. And p. 130, he supposes A to
have been provoked by B, and to have drawn
his sword, and made a pass at him, when B
had no weapon drawn, but missed him ; there-
upon B draws his sword, and passes at A, and
tliere being interchange of passes between them^
A kills B. I hold, says the author, this to lie
murder in A, for A's pass at B was maUdooa^
and what B aflerwards did was lawful. Here
is both suddenly and provocation, and yet, in
the opinion of that great lawyer, it would have
been held murder. And in the present qoestioOy
neither Bridgeton, nor the deceased, had any
weapon drawn.
And to shew, that according to the law of
England, the aiming at one, and hitting ano-
ther, does not make death follo\«ing man-
slaughter ; in the end of the next page he sets
down the Case of Dr. Williams, a Welsbmsui
who having a leek in his hat, upcm 8t. David's-
day, a certain person pointeil to a Jack-of-Lent
that hung up hard by, and said to him, *' LOok
upon your countryman!" At which Dr»
Williams being enraged, toftk a hammer that
lay u|K>n a stall hard by, and flung at him,
wliirh liitanotlier, and killed him : An<l though
being indicied upon the statute of stalibing, it
was resokeil he was not \«iiliin that statute,
because of the kind of weapon ; ** Yet," says
the author, *' if the indiiiiiient had been for
niunler, 1 do think that the Welshman ought to
have been convicted thereof. "f
And since the pannel's procurators insisted
so much upon the law of England, the pursuers
cannot but mention the authority oi one of
those lawyers, as to one of the cases they them-
selves stated in the debate ; Hawkinv's Picas of
the Crown, chap. 31, in fin.: The case is.
That a |)erson shooting; at tame fouls with
intent to steal them, arcideutally killa a man ;
that Jiithor .".ays, ^' TliHt it is agreed it would be
murder. i\\v\ not mnn«l:night**r."
* So in the Furinn Edition. But it appears
that chi<'f justice HoU is intended SceMaw-
griilpe's Case, p. 57, of tins Volume. »
f Ixinl Chancellor Bacon is in this opinion
of Hawkins expressly : See Vol. 4, (Edit.
1740) p. 41, on explaining this maxim offing-
lisli \\\v\ ** In criuiinalibus sufticit generalis
maliiia," &c. \%here he states cases very similar
to the case here argued. Farmer Editum^
91] 2 GEORGE IL
It is troe iodeed, that it would appear by the
law of Eogland, as laid down in tnese reports,
thai if there is pro?ocatioD, io some partica*
lar cases, sufficient to alleviate the act of kill-
ipg, it reduces it to a bare homicide. But
then DO pro? ocation from words is ever sus-
tained, nor CTen assaults, hst upon this ground,
that he who was affronted or asssaulted, might
reasonably apprehend, that he that treated him
in that manner might have some farther de-
sign upon him, which resolves the matter into
a kind of self-defipuce ; and in this the law of
England differs from tlie law of Scotland,
which requires, in order to lawful defence, and
killing under the notion of danger from the
assailant, ** ut quis sit constitotus in periculo
▼itse." But then there is no pretence of ap-
prehending dangerous consequences, when the
party killed, or intended to be killed, was flving,
and had no weapon, as in this case, and the
passion in such circumstandes resolves itself
simplv into revenge, which no law ever sos-
tained to alleviate or palliate murder ; for there
the malice prepensed is clear and evident.
But then, if it be conridered in the present
ease, that the party affronting or invading, is
not only set forth to have fled, and to have had
BO weapon in his hand, but that he escaped ;
what colour is there, upon these principles, to
alleviate the killing of a person interposing to
prevent the mischief, when there was no re^
aistance upon the part of any person wliatso-
ever, as in the case of a combat, and where
it was voluntary as to the person giving the
wound, in regard he could have stopped when
Bridgeton fl^, which cannot be said with re-
gard to. the Welshman who threw the hammer.
To (conclude this matter, it appears pretty}evi-
dent, the circumstances offered in exculpation
afford, by the law and practice of Scotland, no
relevant detence, suppose the person kilted had
been the provoker, much less m the case where
the person killed ^nerously interposed to pre-
vent the mischief, having given no colour or
cause of pn>vocation, having no weapon, and
where the person, against whom the invasion is
said to be meant, was without drawn sword,
and flving : the murder in these circumstances
must nave proceeded either from rage and re-
Tengc, which no law can ever favour, since
laws were made, and judges appointed, that
private persons should not attempt judging in
their own case, and to Inridle the unruly pas-
sions of men, or from set purpose and design
to kill tlie defunct, from former resentment
And what adds to the presumption of the last,
is the nature of the wound, quite through the
body, and that the sword went tlirough tlie
back lower than where it pierced the belly ;
which excludes all possibility of pleading, that
the pannel's stumbling might have pushed il
forward, because by the nature of the thing,
bad he stumbled after the sword bad pierced
the defunct's body, it must have raised the
foint of the sword, so that it eoald not bare
pieroed loaier in the hick than-in the belly.
VpoatiM fist kMch eC the libdi thepor
Trial of James Carnegie^
c
\
suers think it unnecessary to open the pu
cular circumstances from whicli the panne
causeless ill-will and resentment may appi
against the defunct ; that is matter of evidea
and upon which no interlocutor in the rm
vancy can pass, and must lie in tlie breasv
the assize; and against this relevancy no
ception, or colour of exception can bepretena
to lye. And as to the separate relevancy,
art and part, vi bat is offered to be proven, ■
the defunct thrust himself in a manner a.
the pannel's sword: as it is of too ddia
proof, and was repelled in the case of Hamta
of Green, it is believed the lords can hava
regard to it And as for the drunkenness
provocation, especially where the provoc^
IS said to have been given by a thinl partir
it were sustained, it must turn up wliati.::
been thought tlie foundations of the laap
Scotland, and stand in opposition to all
practice that can be discovered from the b^
of adjournal. And the allowing such defea
as might possibly have some colour in th»
of England, to be proven, would be of daa
reus consequence in the law of Scotland, w fa
the pursuers are tied up to a precise relevanc
so that the procedure in that part of I
island, in trials of this kind, unless the wbi
form of trial were adopted in our law, won
open a door for leaving murders unpunishe
The law of Scotland alone can be the rols i
this case ; though, at the same time, it is h
lieved, that the ipecUsfacti, as set forth by ik
|»annel, would be suliicient warrant for a va
diet of murder, even according the laws ai
practice of England. In respect whereof, b
CllA. Ar£skins.
Information for James Carnegie, of Finiiati
Pannel ; against Susanna, Countess i
Stratliniore, the Hon. Mr. James I^
Piirsuere, and his Majesty's Advocate,!
his llighness's interest
The said James Came<iie, of Finliata
stands indirted before your lordships of wiM
and premeditate murder andhonucide; ini
far as, having a causeless ill-will and resH
meut against the deceased Charles, earl i
Strathmore, he couceivc^d a deadly hatred si
malice against him ; and (on the day libelle
" did, with adrawn sword, without tlie leasts
lour or cause of provocation then given by Ui
invade the said deceased Earl, and diil oase
and feloniously murder and kill him, by i^vii
him a wound therewith in the belly, when
he soon aUer died. At least, at the time ai
place described, the said Charks, earl of Stva^
more, was with a dmwn sword, feloniously ai
barbarously wounded, and died of the sa
wound within a few davs thereafter ; and th
the pannel was art and part in this murder
And the Indictment concludes, ** By all wbii
it is evident, that you are guilty, art and pii
of tlie orimes of wilAil and premeditate mupi
and homicide, or ene or other of tliem» aV II
timeandplait|.aMlui tbttnuner abof* i
l«th.«
If/*
fjfiU Murder of the Eari ffSitaihmore. A. D. IVxh.
pMd «M ti— Mbt to ym ImMuf^ alwi j« ymmmiM, nnd iAi»i «M *.^f*
■*f Uibcf Joljciinvatfto^lctti tA woht mymi^ymft, m^tim i/# a^ IvHif tiM «*
be sppcand — rfer ibat um m • faukty, «r>l b<M • ^^mj^u ;iih^*mi m«4
of apinl »ivk 4mj tul^wi o^ Umm^ W if*** p««.# w*«fc •••
!■■ aifJilmaaB Bort be Um^mi^ wmmiot, wa^M t*^ mpMI^ h^^f4 •*• »»m»»#
•beU«Dd«f'Eoe. TWk ImS. «■ Wi^«*tiM MM «••* '•^'jr |(^«*
CMC fv 1H» flbUl^ »*^* iHli^aai %k 1^ (V^ !««
ial «r 1 aM ^ ma mi fii— «iia iir^« i-ji {:•««» :A*'nii «u^:ft «^f ^^^ ^«
*l^-. W tfMUilMiqf c-vaa fMA» l«^:« • *-^^/
1» tut in» M» » HB—<«« Mil 1*^ W^JUtt K-tf^oft «/ 4
•ff
t.t
»5-. «..S-.
• AM'rf
95]
2 GEORGE 11.
used ?ery great rudeness to the lady
in irhose houwtliey were ; particularly, when
ahe in cif ility offered him a glass of brandy,
he, seeing the nannel already overtaken with
drink, desired the lady to *j^ve it to him, her
lirother ; and upon her saying that her brother
did not seem to want it at that time, he grip-
ed lier by the arm so rudely, as to make her
complain, and swore, by God, her brother
aitlier should drink it, or she should drink it
herself; and persisted in this way of doing,
tall the lord Strathmore thought it proper to
break off the visit, and so went out of the
house.
*'That Finhaven and Bridgeton followed
the Earl ; and when they came to the street,
some words passed, and Bridgeton used the
ezpreision, * God damn him,* meaning the
pannel, and with that gripped him by the
breast, and pushed him into a dirty kennel two
feet deep, over head and ears, where, in the
condition he was, he might have been smother-
ed if a servant of the Earl's had not helped him
out, who at the same time expressed his indig-
nation at the action he had seen, by these
words addressed to Bridgeton, * Sir, though
* you be a gentleman, you are uncivil.'
" That Bridgeton, after having so flung the
paonel into the kennel, leaving him there,
walked forward ; at the same time turning
about, and folding his arms across his breast,
acomfully laughed at him in that condition.
*< That the paonel being helped out of the
kennel in manner foresaid, immediately drew
his sword, and, in a just passion, pursued
Bridgeton with a staggering pace: and Bridge-
ion ran towards the earl of Strathmore, whose
back was then to him, and endeavoured to pull
out his sword ; at which time the pannel
coming up with Bridgeton, made a push at
him ; in which instant the Earl turning hastily
about, pushed off Bridgeton, and threw him-
aelf in tne way of the sword, by which he re-
ceived the fatal wound."
These are the unlucky drcnmstances of the
fact, as the lalvyers for the pannel have been
instructed to plead : and from it, as so stated,
the defence iunsted upon for the pannel was,
that the act of killing is not murder, nor capi-
tal, where there is no malice nor forethought
•gainst the person killed, either prored to have
been conceived and retained at any time pre-
ceding the act of killing, or presumed from the
circumstances to have preceded the act imme-
diately before the committing of it : but that
in this case there is no antecedent malice spe-
cified or lybelled ; and therefore it must be
taken for granted, that there was none. And
as to presumed malice immediately preceding
the act, that the circumstances entirely exclude
that presumption ; first, because, as the fact is
laid, any blow or push that was intended, was
made at, and designed for Bridgeton, and not
against the earl of Strathmore ; and since the
imtium/acti is to be considered, as well as the
•rent, a push begun and intended against
BridfUBPi «ould otrar be tha fouBdatioa of a
Trial qfj^mes Camegle^
^ presumption of malice against the lord St
more, the person killed without wbicb
killing could not be capital, but in tfaia
was merely casual and accidental, it hi
bapnened by the Earl's imluddly tumilig
in the time of the pannel's very act of poa
against Bridgeton, wherd>y the Earl rec
the fatal wound. 3do, That the pannel
never be more criminal in having kiUed tfa
of Strathmore by a thrust directed at Brid|
than he would have been if be had killed Bi
ton himself; but that so it was, that if Im
killed Bridgeton, after the provocation m
manner above set forth, that it wouul
been construed ouly as casual or culpaU
midde, without forethought, because don
* incontinent!, et ex aubito impetu, et i
* justse iracnndise ;' yea, in some mea«
self-deleucc;, since the pannel having
thrown into the kennel, even to the dasai
being suffocated, he had reason after tl
expect the wont from Bridgeton, since ofl
tieman will throw another into a puddle, vt
not supposed to be ready to go further, i
cannot but expect the strongest retortion c
injury ; and that the pannel bad the more
son to think so, that Bridgeton immediately
took himself to the earl of Strath mere's ai
and endeavoured to pull it out, having M
his own, by reason that the known ferodi
his character and behaviour is such, that
country-gentlemen of bis acquaintance del
to keep company with him, if he wear
arms : in such case the pannel was to a
the worst, and so was in some measure ii
own defence, although he may have exoa
the * moderaroen inculpatoe tutels ;' wl
excess, in such circumstances, would no
punishable by death, but only by an arbiO
puniahmeiil.
And in support of this dcfeure the con
for the pannel shall now, in this informal
endeavour, though somewhat out of the c
of their pleading, to follow the inforoii
given in for the pursuers. And first, to i
your lordshifis, that killing in such circ
stances was not capital by the divine Ian
law of Moses. 2do, That it was not capita
the common law, which we in great mei
follow in matters of that kind. Stio, Th
was not capital by our own ancient law.
That our ancient law in that particular is
altered by the statute of Charles 2. 5to, '
the practice of the Court is not inconsitf
but agreeable to what is here pled. And
That the laws of our neiglibouritig nations
for tlie most part consonant to tliose princij
as well as the judgment of ibreip^u courts.
And to begin with the divine law, it ma
divide<l into two: First, the law of nal
which is the first of all laws, and hath no €
author than God Almighty himself. Sdo,
will revealed by writing, particujariy in
Uws delivered by Aloses.
And as to the law of nature, one of the
principles seems to be, that every action i
be constroed and regulated from tbo iotii
fofr the Murder of the Earl of Strathmore. A. D. 1728.
[98
. Everjr action whatever, except io
is coDJo'iDed with the will and inten-
• a^ent, cliflTeri in nothio^f from the
irrational cremtnre ; yea, if we may
s to call the o|ienition nr impulie of
te creature an action, the actions of
led from his intention and design as
sntnre differ in nothing from the
ftrntes, or the impalse of things iu-
aod consequently that action, be
I, cm neither be crime nor virtue;
* impulse or motion, not properly
laws or rules. But then, indeed,
im to be conjoined with tlie inten-
Mk is the same thini^, considered as
rf" a rational a^ent, there it comes to
to bus, to be considered as criminal
i : or if it appear to be accidental, so
depended upon no will nor delibera-
isoo, then it returns to be of the na-
ict of an irratioOal crcatur6,or inani-
iDce, and is subjected to no penalty,
pable of receiving^ a reward. The
)aence of which is, that it is the
De that determines the nature of the
'the animuM or intention was crimi-
ij the law of nature, the action itself
a crime. On the other hand, if ii
i f irtnous, the act is laudable by the
tore, supposing even a bad consc-
old follow. But, in the third place,
0 truly arise from no intention or
(oreming that action, it is neither
K punishable, it returns to be of the
Ij mentioned, the same with the like
srational creature, or the impulse of
ite substance, moved by a cause in-
itself. And the consequence of all
a by the primary law of nature, the
Mat make the crime ; and therefore
fear no intention to commit that par-
X which happens to be complained
t a crime, uot withstanding of a bad
ee ; it is considered as a tatalit}-.
'application is plain to the present
tiiat if the unfortunate act of killing
td lord did not fluw from any intention
Kted ; then that net is not bv the law
a cr.minal act, however the antece-
directed airaioat another may he cri-
t is another question, hoiv far a ra-
nt, vcrsans t>< illicito, is bound for
ces that did not lall umler liis iiiten-
'. shall afcer^vards endeavour to shew,
1 neither a question iu the law of na-
D the divine law ; but is a question
m the municipal laws of particular
, or at farthest from the law of na>
letimes called the secondary law of
point, that the intention directed to-
act committed, must govern the ac-
to render it criminal or not, accord -
first principles of the law of nature,
be pretty plain, if we retire our
torn other aher laws ; so indeed it is
and illustrated by the written law of
iVIL /
God, as delirered by Moses, with rmrd parti-
cularly to the question of manslaughter. It is
almost unnecessary to o)»serve, that whether
the remedy against the penal consequences of
actious, committed without intention, was in
form of an absolvitor upon the trial, or by bar-
ing access to a city of refuge ; it is the same
thing : the question is, what was to he the pu-
nishment that was to take eflfectP If the pu-
nishment was to be stopped in that form, by fly-
ing into a city of refuge, the principle of law is
the same,as if the effect had been to be stopped in
any other way. And just so, as we will after-
wards have occasion to notice, it is the same
thing as to our law, whether the manslnyer was
to be safe, by flying into gyrth or sanctuary,
according to the old law, or now to be safe by a
judicial absolvitor or restriction of the punish-
ment. And just so with regard to the law of
neighbouring nations ; it is all one, whether a
man is to be freed by beneflt of clergy, or such
other form, if he is to be free. The foundation
question is only, what was the panishmenr that
necessarily, cum effectu^ falls to be inflicted
upon a homicide orsnch and such a kind ; and
as in this case, upon a homicide dommitted
without tbrethoufifht Or malicious intention di-
rected agamst tiie person that hath suffered ?
And therefore if, by the Mosaic law, one in the
pannel's circumstances was to have the benefit
of a city of refuge, the argument concludes,
that by that law he would not have been sub-
jected to the pain of death. Indeed we believa
we will be able to go a little farther to shew
your lordships, that, according to the opinion
of the most learned interpreters and doctors of
the Jewish law, the l)enentof the city of refuge
was scarce necessary in such a case as that
which is now bel'ore you.
In the 19th chap, of Deut. the cities of re-
fu{ve are appoint^^d to be separated io the midst
of the land, that every slayer may fly thither :
" And this is the case,"(«ays thetext) " of the
f«1ayer, which siiall fly thither, that he may
live: whoso killeth his neighbour i^norantly,
whom he hated not iu time past;" or, as it is
said to be more literally in the original, '* from
yesterday the third day." By this text your
lordships see those two are conjoined as expli*
catory of one another, *' ignorantly whom he
haten not in time past;" and so the word *' ig-
norantly" is put in opposition to " hatied iu
time past," and by that means the sense is
tilain,that by ** ignonintly" is not|nieant, without
Knowing that he kills his neighbour, but with-
out a fure- knowledge, a foresight, a former ra-
tiocination and design : in which sense, know-
ledge is most frefjuently taken, because it is
imiKtssible to maintain, that if a mau i^norant-
ly kill his ueighbour, even whom he hated be-
fore, taking the word " is»iorantl\\" in that
sense, of his not knowing that he kills him, or
killing him by mere accidviu, without his
knowledge, can he liable as a luurdcier; be-
cause it is impossible to conjoin e\c» preuous
enmity wiUi accidental iguoraiu killing, «<> ■"
to make out a crinie ol luuv^^v •, \W\ >^*:^<i *^'
11
99]
2 GEORGE II.
cccdiotf inconsistent with every |>rinci|jle of
reason, tur more uith a law fluiviiig^ from infi-
nite perfection. But then the matter is fully
explained hy ?er. 11, of that same chapter,
which determines when a man is not to have
the benefit of the city of refii^ ; " But if any
man bate his nei{;hhour,and he in wait for him,
and rise up against him, and smite him mortal-
ly that he die, and flieth into one of these cities:
then the elders of his city shall send and fetch
him thence, and deliver him into the hand of
the avenger of blood, that be may die." Here
are both sides of the question put, the one fully
to explain the other ; the last to explain what
is meant by <* i(;norantly, whom he hated not
in time past.*' The last text does bv no means
•ay, that if a man smites his neighbour whom
he knowcth, ahhough without hatred, and
without lying in wait, and without rising up
against him, that he shall surely die ; but ou
the contrary, puts the issue of his dying upon
his liating uf hhn whom he killed, and u|x>n
his rising up against him whom he did kill ;
and u(K>n his lying in wait, that is, in other
words, n|>bn bis designing to take his opnortu -
nity from a premeditated malice: for indeed
the meaning cannot be that of a formal lying in
wait, or lurking in a pussage where the person
was to pass ; but he who debi^ns the thing,
and takes bis opportunity, lies in wait in the
plain sense of the text Besides, the word * * ig •
Donntly" ?ery plainly imports, and carries
under it that case of a man's killing, by mis-
adventure, one whom he did not intend to kill,
that is plainly ignorance ai to him who was
killed ; and yet it will be true, that if he de-
signedly kill one in place of another, mistaking
the [>ers<)n, but designing to kill that person, as
aup|K>sed to be the other, he does not ignorant -
ly kill the man whom be does slay, he kills
him knowingly, although he mistake the
man.
Nor is it of any importance, that the exam-
ples immediately subjoined in the 5\\i verse,
are instances of slaughter entirely accidental ;
and where the slayer did really not know that
he killed, that is an example, but not an ex-
ample exhausting the rule, which the lltli
verse fully clears, as not extending the capital
punishment to all who caiQe not under the de-
acription in the 5th verse, but to those alone
who ^* bated their neighbour, lay in wait for
him, and rose up against hiiii."
And though this is plain vnough from that
part of the law, yrt the matter is indeed more
fully exjdained in xxxvtli chap, of Numb,
where there is another ordinance as to cities
of refuge, and thev are appointed to be six ;
and the general mlc is set down. That every
one that kills any person unawares, may fly to
thote cities. Nothing can be plainer than
the meaning of killing unawares, tnat is, with-
out deliberation, unexpectedly, without fore-
tboaght, ex improvito, es inconsuitu: these
are bW aynonymous, and accordingly the
Septnigict translntioD to renders tbo words
n9fm,UiA iS| ** hivoiumarily ;*' and lo like-
Trial of James Carnegie^
wise the Jewish doctors have expl
will afterwards be noticed.
Ader this the text goes on with
meiit or amplification of that y
" And if he smite him witli an
of iron (so that he die) he is i
&c. And if he smite him with
stone (wherewith he may die) ;
he is a murderer, 5cc. Or if he
with an hand- weapon of wood
he may die) and he die, he is a
These are the amplifications ; bi
lows the limitation in the 20th ve
if he thrust him of hatred, or I:
by lying of wait, that he die ; <
smite him with his hand, that he <
smote him shall surely be put to dc
is a murderer," &c. Here is th<
he that killeth or thrusteth wi(
weapon, is a inunlerer, under th
introduced by the particle ' but,' as
tory exception to the generality
but if he thrust him w ilh hatred ;
other wonls, that he is a murderer
him in hatred : and therefore cc
refer from this text to the other
nomy, already cited, for explicat
where it is stalutcd. That if a ni
neighliour, and rise up against hiii
him ; whereby they plainly uudersi
ing him of hatred, as the same w
against him, and smiting him witi
as to comprehend every maune
witli any weapon ; and conse<|ui. n
is not a distinct manner of killiii'^
is expressed in the IGth verse, b
adjected to the manner of killing, s
it capititl, viz. That it must he doi
And this is yet more elearly ex pi:
32nd and fblloivin<>[ verses, y^ here
tion is Ntated lietuixt thrusting s
of enmity, with a direct rcferi'iieii
17th, and 18th vei-scs, *' But if h<
suddc'niy without enmity, or ha%
him any thing, without laying
with any stone whercwiih a man uk
him not, and cast it upon hint tha
was not his enemy, neither soii<;l'
then the coiigrc;4ation shall jmi;.
shall deliver the slayer out (d the
avenger of blood. *' There ril
methods of killing before-inentit
ferred to : thrusting, properly apf)
killing with a sword, but \viih<
casting any thing upon him, uitl!
wait, or forethought, or with any «
with a man may die, the very ihii
inlhe 17th verse, and from which
to be a murderer ; yet, it he
enemy, neither sought his harm,
munlerer, he is not to die, but lu
from the avenger of blood. 2So tin
last vcri«8 are a plain limitatioi
went before ; the instrument, w ha
was to raise a presumption, it a
but yet if itapiiear the pervon %va
or hurled at, or smitten in euui
I] fir the Mwrier fjfihe Earl of Siraihmore. A. D. 1 72&
[102
'ffv to be ddifcred ffrom the aTengrr of
ctn it stnmble jour lordihipt, tlitt
Hid ferse are thew words, '* teeing
iwtC ** if this were one of the renuisites
ftr the ilayer^t safety* that he did
taan whom he thm8tat,or killed
iMtttthiragh not done in enmity: for,
til impOBnble tn imagine, that the
'nag him not," however they miq^ht
iccMe of throwing a stone, can hare
10 the words, ** thrusting with-
How can a man thrust at him
Mfth not? Or, How can he smite
I he seeth not, in any proper sense of
f Aad therefore it is plain, that as to
'^* ' the only limitation b, that it be
Mtat enmity. But, Sdo, your lord-
tiB obaerre, that tlie word *• him** in
" seeing him not," is not at all
; itisau ailjeclion of the trans-
, as such, is distinguished in different
in any correct editions of onr bibles,
I is an erroneous adjection : the
inrid be only •* seeing not ;" and per-
il translations ou^rht not at all to be by
-:-■-•, c« aecinjj," but, according to the
Latin language, by an adjectire,
M, impmidui imprudent^ or the like \
iBBiiduig to oor langua^, by a substan •
■lidvcre, such as, * without foresight :'
^isBeptnagint does translate it in these
■mlm, which, in our language, is di-
'viibool foresight,* that is, without
iisD or anterior design to give the
Aad so the sense comes out, that
tthroft or blow of that kind is given,
' lity, foresight and premeditation,
words, $ine dolo^ that there death
^ y> fellow, but the slayer to have the
.■••''ibe city of refuge. And that the
■nent lawyers, and Jeuish doctors
. have understood the scofke of the
it liv to be such, is the next point we
'ttdettonr to shew your lordships.
'Mio ibe first place, we heg leave to refer
"Wincifnt treatise, called Mosaicarum et
■^htrum Leirum Collatio, last published
W^ letnied Schulten, with his own notes
m\i\ in tbe first Tit. of which, De homi-
■■Jewu, V. voluntate, § 5, are those words,
f||M dr casualibns homicid'iis Moises Isga- |
KfciuSiautem non per inimicttias immi-
^ItBper earn aliquod vas non insidians, vel
JJ*i qoo moriatur, non per dolum** (your
*^pi will please mark those last words)
"ftftcMcrit Miper eum, et mortuus fuerit, si
^ inimicus ejtis, &c. liberabitis percus-
^•** Here is directly set down, by way
'pnpbrsse, the sense of the 93rd verse of
r'^ib chap, of Numb, before cited ; and
Riy of these words, * seein||^ not,' the
n^nie of thb ancient collator is expressed
V*ewocds, < noo ner dolom ;' which shews
JfiMefHanding ne bad of tbe words, di-
2%coBgnioo8 to what we have above set
m% ■ppnhciidi to be the Sep-
/
tuagint translation ; and this paraphrase the
annotator approves of as the just meaning of
the text.
But we beg leave to give your lordships ano-
ther great authority, who founds his opinion
up«in the notions of the Jewish doctors, or rather
sets forth what they all a;;rpe<l on to be the
import of the Mosaic law on this head, and
that is the ^ve^i and learned Selilen, in his
treatise, De jure naturali et gentium, jnxta
disciplinam Hebneorum, lib. 4, cap. 9. The
title of which is, '* De homicidio involuntHrio,
sen quod casu factum aut errore." Theie the
learned author takes notice of all the texts upon
this subject, and of the Jewish doctors \iho
hail wrote upon it, whose names we need not
trouble your lordships to refieat, but retVr to
tlie quotations Selclen makes. That learned
author takes notice of three sorts of homicide,
which he and the Jewish doctors reckoned to
be involuntary, acording to ihe Mosaic law,
and not to be punished with death : the first
is, What is merely accidental. Tlie second
is. Where the killing was not merely acci*
dental, but as he expresses it, " prope acce-
dens ad violentiam." The third we beg leave
to set down in his own words, as commg up
directly to our case: '* Tertia aqtem homicidii
involuntarii species est, ubi qui alium occidil
ex errore quioem aut ignorantift, quae tanieo
prope accedit ad id quod spontaneum est sea
voluntrium ; veluti uoi quis alterum occidero
volens, alterum jactu aliterve perimit, aut ubi
jactu sive saxi sive teli in hominiim cietum,
ciijus nee ignarus qui jecerit quis occisos:
adeoque intervenerii culpa latissima. £x tribua
hisce homicidii involuntarii s|)eciebus, nulla eat
que morte ex sentent ft tbreusi ordinarily, sive
in Ebneo aliove circumciso, sive in proselyto
domicilii, aut gentili alio puniretur. Nam in
nniversum pronunciant, homiuidium nullumi
seu qui non sponte seel us patraret, sic foro
puniendum." Yea, he goes farther, that, in
this last case, according to the Jewish doctors
opinion, there was no need of going to the
cit^ of refuge, for that the avenger of blood
had not a power in that case to kill.
We apprehend, nothing can be more direct
or strong to the present case, than that autho«
rity which is laid down, as the universal opi-
nion of the Jewish doctors, which we hope does
deserve some regard in the interpretation of tbe
Mosaic law.
And this naturally leads us farther to observe
to your lordships what we insinuated before^
that the question started by Roman and mo-
dem lawyers, how tar a person that intends to
kill one man, is liable to the pain of death if
he kill another, hath no foundation in the
Mosaic law, either from the texts, or the opi-
nion of those Jewish doctors. As to the last,
your lordships see, that Seldeu from them,
directly states the case, ** ubi quis alterum
occidere volens, altorum jactu aliterve peri-
mit;" and he and thej^ determinoil that to
be an involuntary homicide, not punishable
with death; and \s^ »ppreti%Y^^ Vbal \^ tkk\a
\
103]
8 GEORGE U.
Triat of James Cant^ie,
[
tbey are firanded in the words of all the
texts, ** If any man hate his neighbonr, and
}ye in wait for him, and rise np afifainst
him, and smite him mortally, that he die :"
Not one word here of rising up against one
and killing another ; not a word of hating one,
and in consequence of tliat hatred killinff
another : that was a case which did not fall
under that law. The hatred and the rising
up, W88, by that Isw, to be against the man
who was killed ; if another by fatality happen
to be killed, that was a different case, it was
an inToIuntary homicide ; the crime there was
not the killing, but stood upon the rising up
against him who was not killed ; and so the
punishment was for invasion, but not for kill*
log. The texts in the book of Numbers are
all to the same purpose : « If he smite him
who is killed of hatred, or hurl at him by
laying of wait that he die, or in enmity smite
with his hand that he die," &c. where all the
rules are still directed towards the person
alone that is killed ; and that of killing another,
when the stroke was not designed at him, is
ijjuite left out of the case. And the applica-
tion of this reasoning to the present unhappy
accident, is too evident to need enlargement. If
it appear that the push was aimed at Bridgeton,
that the enmity was againat him, and not against
the deceased lord ; then, whatever bo the con-
stitution of the Roman, or more modern laws,
the present case is quite out of the description
of tne Mosaic law concerning this article of
manslaughter.
What hath been already said at so great
length, does fully obviate what is offered in
the pursuers' information in way of answer. It
is true, that the general rule in the divine
law is, <* That whoso sheddeth man's blood,
by man shall his blood be shed ;** and so, by
the sixth Commandment, the prohibition is
general, <« Thou shalt not kill :'* yet even the
Commandment itself ad mite of exceptions ;
such as, killing in self-defence, and killing in
execution of justice, and killing in prosecution
of just war, and the like. The other rule like-
wise admits of exceptions, not so as entirely to
t'ustity the killing, and to make the act lawful,
>ut yet so as to excuse from the |»ain of death.
The texts already noticed are express, that a
man's blood may be sheil, and yet the blcxNl
of the shedder not be required en that account.
The question is, Whether this misfortunate
panners case comes not under the exceptions ?
And that we have already discussed.
The positiou, that by the law of Afnses,
M Death of asuddenty was plainly ca)Mtal, and
that the slayer had the bcoeiit of ibecity of re-
fuge, only where the slaughter was by mere
roi»fortune," is assumed wituoutsuHicieutfouu-
dation. It is plain, that he who thruMts without
enuiitv, does not kill the man by mere casual-
ty : the act I'rom which death tbllowa, is a vo-
luotanr act, although without euiuity : andal^
ihougfa the killing is involuntary, and so can
never be said to So merely casual in the sense
4ho pmuan would laktt the wordf; neUherva
the words in Exodus, *' If a man lie n
wait, but God deliver him into his hand," i
least contrary to what bath been advsn
for it is roost properly said, that where tb
is without the de^i^Q of the killer, withou
mity, and without hatred ; that there, in i
as concerns the killing, God hath delivcre
man into the hand of the slayer. The
meaning is, that where a man is killcc
with design, but that the thing happens b
over- ruling hand of Providence, pcroM
things of that kind, in his sovereign wii
and from hia supreme power ; that ther
person is delivered to death by the over-c
hand of God. And where could ever th
more properly applied, than on the presen
lancholy occasion, when the providential
ing about of the unfortunate, dcceaseil loi«
casioned his receivuig the fatal wound ?
It is likewise a position assumed w
reasim, *' That wherever a man was kill
a mortal weapon, that was murder by the
saic law." vfe hope we have already da
strated the contrary. If enmity and foretia
was required, (and we need only repea.
one teso, which expresses the kilHng ■
with a stone, wherewith be may die) the'
text declares the stone to be a mortal we^
yet for all that, in case of the circums
mentioned in the other verse, the slayer vb
to die, but to be delivered from the aven
blood : and this single consideration m i
sufficient to refute such a position. I»
possible for a man to use a mortal w •
where there is no enmity, nor design to k
person who is slain? If it be possible, as
tainly is, tlien can we imagine thatal^
perfect as the divine law itself, could dp
man guilty of murder, because of the '
such a weapon, where he really intend
more barm, than a man that used a wea]
another kind? Besides, that in truth
weapon is a mortal weapon with which s
may be killed : and therelbre« to iniagio
the divine law laid such a difference b
an instrument of iron, and one of another
is certainly to go too far. The law of Gc
put the matter upon a much juster tbi»ti
wit, the intention of the person, which
can distinguish his actions.
The pui-suers also say, "That thoo(
argument is grod, that wherever the beut
the city of refuge %vas not competent, the
crime was capital ; yet it does not fulloH
where the power of the laws were susp
by the jut a»yli^ that the punishment is
be capital iu a country where the jiuofy/i
DO place."
but. with submission, this is no solid v
arguing : the question hitherto treated is,
was tlie Uw of Moses, with regard to pi
inents in the case of manslaughter ? If tl
Disbmeni in any case was not ca)Ntal« be
of the privilege of the asylum, tlie cone
isjiist, that the all- wise G<nI did not inteiM
puniskmenta should be mflictcd for such
taaoe^ aiid tht fiwm of granting the pnH
MS] Jor the Murikr of ike Hart of Strathmore. A. D. 1726.
im
irike BUKhant, does not alter Ihe subsUnce
fht MSt poiii lodertakeo to be illastrated,
m, TWt MBclauglUer, under sucb circum-
gtaMHW occur in tbe present case, was not,
Iviha SMUBOo law, pnaisbahle by death : and
M isfBMBi ami indeed be divided into se-
•iieh as, Imou Tbat culpable
sw not so ponishable, and tliat bo-
■aittsil opoo sucb high provocation,
WPfcRfifeQ by Bridgeton, coiiM amount
^flUli hooMtdt only. Sdo. That, by that
ki^aidnucd lord not having beeu intended
UltkiiilMttbe invasion, whatever it was,
lajiiBit another; Uie killing the earl
*,ortl worst culpable, not puniahable
r:
iiitftB the first of these points, we shall
" Jior lordships with infinity of laws
■of lawyers that might be adduced
Ae poiot, but ooly take notice of some of
iMl raairkible, and which seem most ap-
*' II tbe present case. And in the first
faoodationof the Roman law on this
to have heen laid down as early
Aidijief N'uina ; tor the Roman writers
■iiiiieeof a Itwof his in these wordu ; *« Jn
felvbul ciiitum est, ut si quis imprudens
■ lecidittet, pro capite occisi et natus
RiieBMiooeofferret arietem.'' This law
bisMieeof by Pithaeus, in his annota-
W^tliefore-citeil, ancient treatise, cfim-
pHf ibe Monir and Roman Uw, with refl^ard
MiMofinaiiUaugbter, w agreeing pre-
M^aitfcthelaw of Aloses; and tho plain
■■■■Ci^it is, that where a man kills ano-
■>,ilihosgfa cul|iahl^, yet if if ho sine doh
f^yn^tiam, hi is not to Riiflcr death, but
*■■*•*«> thracnl til the n»»arest rehitions
"•fViOii killi-d: and the same treati»e
'■■'•Beof a rescri pt of Adrian's to the same
^^•.directed to TauriniKs I'^iintius, approv-
^'^ 'Moment given in ihc cawe of one Ma-
•^nMUf, whereby the prucunsul had nii-
^P'Bdi^lMjnishment of manslantrhter upon
•tpMJwJ, thai suppose it was done per las-
«*«i wd culpably, yet il ivas sine doio. The
■*die* Ihe rescript are, ** Pcenatn Marii Kva-
nbrccie, l^atc Taurine moileratus es ad mo-
^Mi rni[n; ; relert cnim, et in majoribus de-
w cuosuiio alio quod admiltatur an casu ; et
■xisooioihuM criminibus distinctio hcec pcc-
■uiiMjiistitiam provo<:aredel>etaut tempera-
■wtom adniittere." And ^»chuIten, in his an-
•Wmss, explains what is meant by casu in
■»« aords, ♦* Per casum hie intellis^itnr fieri
^ iioo fit dolo, quomodo et quod impetu fit,
•^ Jicittir fieri," I. 1, sect, a, ad leg. Cornel.
Lbi pro causa, editiones veteres
^fbttsm recte haberi casu certi»imum est.'*
•fcefc, by the bye, shows how erroneous the
^|ars' isterpretatioo of the words casus and
Ijssi • M, » hen they w«Mild reslrict them to
^ ii done by mere acciilent.
' 1W ReacTid rules or the civil law arc plain
2|^ paint, tlMt it is the ** animus qui male-
wildiHiBguU ;" %kMi tlMre can be uu wuiiler,
^* aine aniiso occidendi." But tibeao gononl
topics need not be insisted on, whore the texto
tbiemaelvea are so express, auoh as not ooly
these already mentioned, but even tJJMt 1.1, sect.
S, ad leg. Corn, de Siccar. " Divus AdriMUif
rescripsit, eum qui honiinem oocidit, ai noo oc*
cidendi animo hoc admiait, absolvi poAU».'' And
a little after, ** £t e|t re coostitueadum boc^
nam si gladium strixerit, et in eo percttsserit^
indubitate occidendi animo id eum aduiiaisso.**
But then he adds the exoeptiou, " &:d si olavi
percuasit. aut cuccum^ in rixi : quamvis terra
percusserit, tamen non occidendi animo, lenieii«
dam poanam ejiia qui in rixa caau magis quana
voluntate homicidium admisit." It is truo that
the pursuers, and indeed several of the doctors,
endeavour to turn this text the other way, hy a
plainly erroneous interpretation, and wrong
pointing of the text. They pretend, ** Thai
where a wound is given by a sword, there th«
awmus is undoubtedly presumed ;" and ao far
right as to the rule. But then the law aeta
down the exceptions ; first, if the stroke bo
** clavi aut cuccuuift/* suppose these be mortal
weapons wherewith a man may die, yet be*
cause they are not instruments exiiressiy mada
for death, the presumption is, that **aberat
animus occidendi." uoleMs i-ireumstancesmaka
it appear otherwise Then the seconil excep*
tion is **in rixa, qnamvis term percusserit,'^
although a mHu strike witli a swoni, yet if it ba
in rixa. suddenly, or ujion a provooaiiou giveD,
*' tanien non occidt-ndi animo, leniendam pca-
nam " because ^' in rixa, casu magis quam
volnntate homicidium admisit." Thoiie doo«
tors, inrleed, who go wrong in the interpreta-
tion of tliis text, pretend, that the meaning of
quumris fcrro is not, although he strikb with a
awiini. lint would make the meaning to be,
*' Although he strurk witli an instrument of
iron," and so make the word J'errum^ and also
those words im rijrci, refer to other words "• clave
aut curcuma ;'* so as that the sense should be,
if a man strike, " clave aut cuccunia in rixa,"
althoutrh these be instruments of iron, he is not
presumed to ha\e had the animus occidendi.
But, with submission, as t)oih the learned
Noodt and Sciuiltun observe upon that law, the
interpretation is strained, and imleed illiterate :
for the word /rrruw is never used in law in that
sense, but always does sii^nify » sword, and so
the expres^un is the same, hut ornately repeat*
ed in other words, as if the emperor liad said,
** in rixa quainvis gladio percuatserit :" and so
the sense is, that the animus is in (general pre-
sumed from the using a sword, that it is not
presumed where the instrument is not an in-
strument made for death ; hut if the killing
happen in rixa, the animus is not presumed, al-
though the stroke be given with a sword.
And this is likewise the opinion of the learn-
ed tirotius, in hiii annotations upon the text, in
Numbers aiiove cited, verse 16, which, in the
l^tin translation, is rendered ** Hi quis ferro
pcrcussriit ;" on which Grotiiis hath Uiisnote,
'^ Mos Khraiorum luultis verbis rem circumlo-
qui. iStiiikUb e^ ; mortis esse poiuam quali-
1
107]
fi GEOHGB IL
cooqae ti\o <|uia homiDem ocdderit. Ex telo
pnnuinitur malam cofwilium, nisi oontrariiifn
appareat.*' Tbero your lordtbips see that au-
thor's epinion is as-we plead, thiat the using a
mortml weapon presumes the design, hut not
'* preesumptione juris et de jure ;" for he adds,
** mm contrariuin appareat."
The rescript of the emperor Antonine b like-
wise as express on this head as can be, 1. 1,
Cod. de Siccar. " Frater vester rectius fecerit,
si se prcesidi prorincisB obtolerit. Qui si probt-
terit, non occidendi animo hominem a se per-
cussum esse, remissIL homicidii pcaiill, secun-
dum disciplinam militarem senientiam profe*
rit; crimen enim oontrahitur, si et voluntas
oocendi intercedat, csterum ea qnie ex impro-
vise casu potius qnam fraude accidunt, fato
plerumque non noxos imputantur." Here the
emperor plainly sets down these two things,
first, Ths!t " pcsna homicidii est remittenda, si
animum occidendi non habuerit/' 2do, That
where the thing is done ex imprcrvt90j there is
no animui ; that it is to be looked upon as clone
colli, by fatidity , rather than crime : but never*
theless that in such a case there may be an ar-
bitrary nunishment.
The doctors of the Roman law seem to be
unanimous on this general point. Carpzovius,
one of the severest criminalists, is most express
upon it ; *' Ceasat porro pcena ordinaria bomi-
culii, si culpa vol casu fuisset commissum ho-
roiddium ;'* and goes on, '^ quod adeo verum
Ml, ut m homicidio lata culpa, dolo non sequi-
fwretur." Clams is likewise as express upon
this general head ; and such shoals of others
are by them quoted and referred to, that it were
vain to repeat their names, or trouble your lord-
ships with quoting their words. We don't
know that any lawyer of reputation differs upon
the general point
But then indeed the question comes, What
is culpable homicide? And whether the pre-
sent case fiills under that description ? Which
is next to be illustrated. And here we humbly
insist, that where the homicide is committed
upon a sudden quarrel, and provocation given,
cspeciallv by real injury, and that quarrel be-
gun not bv the killer; that this is no more than
culpable homicide: and for this, in the first
place, we oppone the law already cited, ** in
rtxa quamvis ferro perctisserit." And to the
same porpose is the first law, § 5. ff. ad senat.
consult. Turpilianum, the I. S. Cod. de abolit.
and the § 9, 1. iG, de pcenis ; the words of
which we shall not trouble your lordships with
rtpeating, because they are the common texts
founded upon by doctors on this head. We
have likewise lor us the authority of all the
ancient, moral philosophers ; such as Aristotle,
Plato, Plutarch, and many others, likewise com-
Monly taken notice of by the lawyers on this
aabject. It is true, some of the severest cri-
ninalists, such as Matthssiis and Carpsovios,
Am't admit the role in general, but still they
admit aa mach as is necawary in the prewnt
qucttinn: tbey doo't allow, that where the
killcc ii muiv rixm^ tliat he it at all to be a-
Trial qf James Cart^lef
cased, although the killing happ
iracundia ; but then most of tlicm
if the killer be not the auctor rixa
person provoked, to whom a just
has been giv.en, especially by a
and so particularly Carpzovius, on
verest, after he has argued at Ion
the general point, concludes in lii^
§§ 14 and 16. '* Nihil quoque ad
gula adducta, quod scilicet delictu
missum, mitins puniri soleat ; quia
de ira ex justa causa proveniente ac
duplex etenim ira est, alia ex justa
venit, que si non in totum, tamen e
cusat, ut delinquens mitius puniatu
non provenit ex justa causs, qus i
cnsat." Then he adds, ** Hsec dis'
mnniter recepta est ah interpretibus
severals. And then concludes, ** H
causa calorem iracundioe pneceda
quia ah alio fuerit provocatus, au
offensus, time is qui ir& et intenso
motus, provocantem seu offendenti
absque dtibio a poena ordinaria libera
vero si quis, absque justa et pml
iratos, aliqnem occidat, dc) ^no ci
loquimur, qui p<ene homicidii ordii
quam est eximendus." And then t
that the practice in the court of J
agreeable to this.
There is an adjudged case vei
published in a book, called Alpho
Neapolitanl Consultationes Decis
learnedly resolved. It is the Decis
shall state the case in the words of
'* Quidam nobilis Ragusinus fuisset
extra (sed prope) ecclesiam sanctee
tri Gravosa, a quodam alio nobili F
eodem pacto evaginavit puguiuncm
tum verberantem, ac in fu<>;am jam
et ipsum insequens, unico vulnere
in dicta ecclesia (qnam ille intj^ret
dictam ecclesiam egrediens sese in I
et cum dictus verberator, ex dicto u
vulnere intra dictam ecclesiam mor
The case came to be tried, at leasi
tions upon it to be resolved, by the s
sus; where several questions occ
those which are most applicable to
case are two : First, '^ An hujusin*
diiim in ecclesia perpetratum, turra
vduntarium necne, eo quinl dictii
secutus fuisset ilium cessantem a vt-
ferendis, ac aic unico vulnere inflict
set?" The second question is, *
nobilis pnedicto modo ac de causa
tam immunitatem ccdesiasticaiu, V(
seculari, et ecclesiastico pccna nidi
tendus, vel solum mitiori pcenal*"
tion upon the first question is. That
first view, the homicide might seen
<* £o quod dictus nobilis, neinine i
pellente, fugientem hominem vuln^
bilominus nullo pacto fore judicand
dinm voluntarium, aut pro tali diet
nm.^ The reasons fi>r this n
down with great laamiDg and ju*
W] >r the Murder of the Earl ^ atratJmore. A. D. 17S8.
[IW
MM hif, that h iiimpoisiUe to repent them :
fnliTkey ire taken from the defiuiiion of vo-
kmrf bomiodr. Stlo, From tlie texts of the
iNOilnr, ond the opinioD of doctors. Stio,
Fiaalbt particular, that the noblemau had
' ' "^ ]y itruck before; ou which the
ruble, " £z hoc ergo articulo,
clidtur hoDiicidium hujusmodi
et mm voluotarium, nam Quli&
■■iiiMqMnte,evaginato pugoioDe, ipse do-
percusaus iosecutus fuit dictum
jam fugieotemy et hoc pro honoris
DMinDe, ut sic se tueretur ab in-
flnonli recepta ex verberibus :" after
■W Mm a kwg reasoning, all in the pan-
lAAfMn. And this case we take tbemore
t0M d, kcaose the parsaers pretended to
■baAliictiMi betwixt the case of a wound
^mA§ rcrjT moment a real injury is done,
■Uifilwgifen after the iqjurer has desisted
talaUBi, and retinsd to some distance ; but
jjiiap difference, except the interval be so
1^ kcao be supposed the thought of the
TJared iru cool. The other question is
loolfed in favour of the arciuied, that
a ene, not the ordinary punishment,
ladaiaiticslor civil, ought to take place,
■ftttif llie pana mitior^ and conlirmed by
■7 itaf reaaons, which we cannot recite,
" ' to.
jtt oilier authors that might be cited
^fP"^ ^ifl opinion, is the learned Voet,
biaTcr^asciioo cited by the pursuers, ad.
^tikf, eon, de Sic. n. 9, where, after he
iWjMiwiiat is cited for them, that onekilliug
ttikr whs has provoked him only by a verbal
vii|hiiajiry, " vix est ut ab ordinari^ pcend
*■*•*"»*;" he adds, that if the provo<.'a-
ii}' ao atrocious real injury, tliat would
to mitigate the ordinary punish*
lei U> confirm that, cites Matlm:us,
&c. And the reason given by these
fur making tliis allowance, in case of
Bfm»ocalioo, is expressed in these words by
H^nd, ad. 1. 17, d. t. *' Quod ei sit igiios-
■rfsmff^iiiprovocatus seulcisci vuluit, tjuiquc
■*■ Mortm prosequitur."
M iodeed we a|>preljend this opinion is
■ssAnl in the first principle of nature ; for
Vttas} JiunaQ constancy can suflersuch high
al injur jr, without the passions being inflamed :
d afdKia<;h killing is no doubt an excess in the
isnitiA of • rpal iujury , yet still it is but an ex-
■« SAil the iujury shews the thing done
Afiut de«ii(a ; ano iherufore, becnusc of in-
■raU«, human weakness, the punishment
it to be mitigated. And the application to
IprtMrDt case, as we apprehend, is obvious ;
ii|t«i« had given the highest provocation,
My by a track of verbal injuries and en-
vavs lu pick a quarrel, but had committed
taosi provokint; and real injury, to throw a
rinaa over head and ears in a dirty puddle,
ftf aiddle of a town, and «ight of so many
kakcra ; do injury oould be more pmvoking.
I lafeul there was Diore in it than an in-
fmkf : one thmt waa abU to throw thepaa-
nel into the puddle in that manner, was like-
wise able to have suffocated him there ; tha
pannel had no reason to expect otlierwise, and
therefore do wonder if he betook himsell to hia
sword.' And the other circumstance noticed,
that Bridgeton, immediately upon the doing the.
thing, endeavoured to draw and make himself
master of my lord Stratlimore's sword, ga\e the
iiannel ground to expect the worst ; and so it may
be doubte<l, if he was obliged to wait till Bridge*
ton should have'an opportunity to give him the
blow, even with a mortal weapon. And when
this is considered, the fact goes fartlier than a
retortion of the highest injury: the pannel
was in some measure put upon his delence ;
and granting that his pushing at Bridgeton
was an excess, yet still that excess falls only to
be punished pand extraordinaria.
All lawyers distinguish excesses of that sort
into three kinds, tliat of time, place, and
weapon that is used ; and excess in point of
time is punished even with death, where tha
interval is great; because that interval pre-
sumes fraud and deliberation : but here waa
no excess of time ; the thing was doneer ia-
continentiy when the injury was fresh and re»
cent. There is likewise excess m point of
place, when the injurer is allowed to retire to a
considerable distance from the place where the
injury is given; aud this in some measure
coincident with the other, because it implies an
interval of time : yet if it be not great, tha
lawyers hold it to ble only punishable arbitra-
rily. And then the third is the excess in tha
use of the wea|Min, where there is no interval
of time or place ; and that is always agreed to
be punishable only arbitrarily, where the pro-
vocation is high. *
From what is said it seems plain, that if
Bridgeton had received tlie thrust, the homi-
cide would have been culpable only ; and so
it remains to be considered, ii' the case conies
out worse for the pannel, because it was uiy
lord Sirathniore that received the wound, and
not Bridgeton. And we apprehend it does not,
but ou the contrary, that this gives a great
strength to the detence: And that because,
Inio, The push being designed at Bridgeton,
shows that there was no malice at my lord
Strath more, neither prcnicditated,nor presumed
from the giving of the wound: for admitting
it to be true, that in an ordinary case, the
giving a wound with a mortal weapon presumes
the dole or inalcvolous intention ; yet that can
never be where the push is pointed at another
than him w ho by fatality receives it. And so
the case comes out thus, that the [lanncl in
making one push, could not design it at two per-
sons ; and so if he designed it at Bridgeton, it
is impossible to say he had a design against
my lord Strathmoie. It is plain in the nature
of the thinfl^, that the design, though presumed
from the giving the wound, yet in point of time
it precedes the actual recei% ing ox the wound,
although that preceding or precedence be but
momentary ; and therefore if, in the very act
of pushing, the design appears to have beea
ILl] 2 GEORGE 11.
agarnBt Brid|(etoii, it excludes all pretence oF >
any animus a^inst another who received the
i^ouud hy fatality, in the very moment that
the design was pointed afi^inst the other.
And here your lordships will likewise ob-
lerve, that there can be no animus Decidendi
presamed at all atprinst anv man, not eren
against Bridgeton himself; because the draw-
innf a sword, and pirshingf at a man with it, does
nut of itself presume a design to kill the man
pushed at, eaccept the woand, and death ac-
tnally follow: for it is from theerent of the
wonod, anil death following alone, that the in-
tention is presumed. Therefore since death
did not happen to Bridgeton, the law cannot
presume an intention to kill him ; since the
foundation of the presumiitio^ is removed, or
did not happen. If the blow had missed him,
or had not killed, but wounded him; the in-
tention would not be presumed ; and therefbre
it cannot here lie presumed, as the case hap-
pened ; for there is no such presumntion in
law, as that killing one presumes a design to
kill another; except where it appears that the
slayer killed one man by mistake, taking him
to be another : as for instance, killing Cains in
the dark, when the killer really beliefe<l him
to be Tilius; there indeed the killing of Caius
iH«sumes the intention of killingTitlus, although
he was not actually slain : and thercfoi'e in that
case the killer is indeed guilty of murder. But
it is quite another case, where one man is
killed, not by mistake for another, but by fata-
lity, when the push was intended at another,
whom the killer knew, which is the case in
band. And therefore we do humbly insist,
that it cannot be said there was an intention to
kill Bridgeton, since his death did not follow.
Neither can it be said there was an intention to
kill the earl of Strathmore ; liecausc, though
his death did roost unluckily happen, yet the
tni/itcm, upon which the intention roust be
founded, did not happen, the push being made
at Bridgeton ; for those two must always
concur, the push made at iUe man who dies,
and the actual death : and wbiere it happens
otherwise, the death is a mere fatality ; not
Intirely innocent, because the killer was so far
fiittlty in invading the other ; but then it is no
more than an invasion ; it is not murder from
malice presamed. No presumption of law can
get the better of contrary evidence : the pre-
sumption of law may be, that where a man is
killed, he was intended to be killed : but if from
the circumstances the direct contrary ap|K>ar,
that there was no intetitinn against hi:n ; this
is evidence which excludes the presumption ;
and so there can be no murder in the case.
It is indeed a case stated by the lawyers,
what should l»e the consequence, if a person in-
tending to kill one man, kill another ? And we
acknowledge they are greatly divided among
themselfes upon theqneition ; a great many of
the sMest of thesn ure in all cases clear, that
where one man is killed, and another was de-
signed, it cannot be murier, because of the
want of tn intention against him. Bartolus,
Tfial of James Carnegie^
I
Farinacins, Gomcsius, Menocliius, and r
bers of others quoted by them, are pla
that opinion, and give an account of se
judgments of the courts of Mantua and Na
and others to that purpose; and Farin:
says, that it is tlie common opinion, " £t a1
sentpntiu in judicando nun esse recedend
And however other lawyers may seem to c
yet, in the first place, the divine law, for
thing that can be found in it, is on this
because it pliinly speaks only of beating
and rising up against him who hap|>ens
ally to be killed, and mentions no suchcai
deserving death, as this is of rising tip a(
one man, and by fatality killing another.
That this was the opinion of the Jewish do
is plain from the quotation already br<
from 8elden, where this very thing of k
one man in place of another is made part
third case stated of involuntary homicide
determined not to be capital. But 3tio, ^.
lawyers, who at first view seem to diflF
reany not differ, when the cases are d
guished : for what they plainly mean, is
where a man by mistake kills Titi us, beli
him to lie Mevius. This we admit is ca
for reasons before given ; hut not the oti
killing one by fatality, and not for anothe
directing the blow at the other.
But then your lordships will observes
all lawyers agree in this, that wherever a
is to suffer tor killing one, when ho intend
kill another ; that ran only be where the
tliou^'litand duluse intention to kill the otI
certain, but'not where the invafiinn is ex imp
And therefore, supposing one invade anu
with an intention to hurt, or prtruUre, ai
lawyers call it, hut witlumt a c«>rtain evid
that his thorough intention was to kill ; t
supposing the blow intended for one do
another, the killer cannot suffer death :
which by-the*bve shows your lonishifis,
there is no snch presumption in law, as,
because the push killed the earl of Strathn
therefore the pannel intended to kill Bridge
for if that were law, then the question i
never occur, but would be inept, wlietl
man intending t(» kill one, and killing an<
with that blow, is guilty of murder, or is
sumed to have intended to kill that oth
whom the stroke was intended? We
trouble your lordships only with two autho
on this point, which are very direct to ihei
the fi riit is that of Htrlichius, which w<
rather notice, because he seiMns to be ag
IIS on the general point ; after discussing w
he hath these words, speaking of his own
nioii, " Fallit, si quis ali(|U('iii iion oirciden
percutere tanlum, volens, aliutn prater ii
tioneni i>ercutiat iit moriatur." From this
lonlslii]is see, that it is no consequence,
because the thrust killed my lord Strathi
therefore it should be ptesunied the pann
tended to kill Bridgetun : if thai were
that lawyer's poiiitiun, from whom nolKxh
fers, must be direct nonsense. And thei
fince there is no other eridence of a fartbi
theMttrdero/theEarto/i
* BrMgtIM tirati pcrcnlcrt, er-
Btttlmlmhoriiir lunl^trarb-
ll hk ib*th cannot |>rmiiiire it ;
■ "(T ifae iwsition Ui« lawyer
i[ti tny I '
ir Itiirt lie iulviiitnl to ito
■'inn at rtqiluiD,
.-wLill.
■'■iiiatiis, oajl.
"■ly (luCEtinnt be
tt' lb* kilJcr VM oeeupatuc in
■l«ny H^^irres-
the CMC her«,
Mliabl«>, altbongh he r.lianee
If : bnt tliFD he goes riirtlter,
nplinailreiaextrinlariius, reus
"" «IB, orcapaiiis, tali tHiiien
il, DtMCuuin iaterferissel,
rtam tiitiatA, ijnii|urtiKO
ipmoioslBtbalcin ncpperii
' ' ftl : com CDitii Coii
errurtiMifn enm 4
debvl: atqueCainpo-
fbnit, *el iracuoiliam
erit, id quoil induwcii-
Here joiir lardshi|]S
: of a rixa, wh^re one
n BriJfreioji iliit; he
«ach a COM killing the
lninf«r ileaih ; much l«u,
killing of a third (wiiy :
' olMerTa be ancrls fur-
*wilt
r, l»<i
of theslaii^hlcr.
omeiyet i-lowr Id iht
latnea Caium idTersa-
I, Kd illi tautum norare,
impnidenlGr st ictui oliji-
torcnl, tune certe im|iru'
ii 4HieliUD rel agfp-aTare noi
il ipodvralorem rixie se noo nb-
umaiibiiort ex propiDquo
a nedrnle forte remutior,
re naxuni inde reporiaMPt,
rs obiala eat : excusandiii
,*TC(umr tunc, cum occi'
«i«dfui*Map]>iiift."
lie M the preirent questioDi
h h were ■ rcMluiion on ih(
ir lnn<«lM[i« see, that not-
11^ killed, theauthor say«
se an|war, ihai there « n^
t Mlier : the olbpr, who,
■naancc, migbi doi ban-
e bMn bprt anrf
a tliat came
vltabehilM. This
H itHiK not ap-
B kill UcMirelnn,
~ n killed, Ihii he
indeiJ ; and
tare. A. D. 172S. [114
bnnuse «f tlin fblalily of killing the (leceued
loni, '■ qui "tibito rorpiM siintu ex pnipinquu
objecil.*' An<l ii|>Qd nil tbnse groiiriiis. wb
humbly b9ial, tbatilBriUgelOTi hail Weu killed,
there WAuld bare been nu place tor a CHpltal pu-
nish mctrf : bnt ibenBeparalely, whatever be id'
that, that since it doee Dot appear (nnr cauunt^
rieaih ffitt not follow)ihnt there wB« a cer-
tain intcniicn to kill bim, tho casual kilting of
the earl ofStrathnHiv cannot bp puniabable ivilLi
death.
What has been saii), fully rcmoTca any ar-
Kment that may lio drawu from air Geor^
ickoLisie'e opinion, " Thui lie who by dim-
lake kills one tor aitnlUer, should die:" For
your Wilsbipsaee, that be siieaks only of that
cose, wlien one man ia certanily iittended to b«
killeil, but another is killed by mistake, bein^
)iiipitoierl 10 be him : that ia not the case noir
bctora v4>iir lordships.
And til this qiieaiion, concerning thepauml's
iDtcnlbn and iteaigii- 'lie cin^uniBtaDce of hi«
bein^ overtaken nilh drink, is a circa inMalica
tliHl ivninta in the arf ument. We do oot say,
thai, heiiig drank affords a deftrnce for killing ; DO-
verlheleaK it isa cireuinitatKC whereby tDkbow,
there wna no malice or dole, especially agoinat
the earl of Stmllimore; since erery boity raay
conceive, howes&y ilin for a nraii that Is drimk,
pDsbiBi; nt ODe, even to atagger upon aootbeTf
or not to hare the judgtnent and presence of
mind lo draw back, when thai otlier auddeoljp
IhroWB himself in t|ie way of ihe tbrusl.
Wh.it ia laid duffn by the piinuen, in op'
(HMition to all this, in Iheir int'ormaUon, i* ao
fully obviateil, tbat il is quite needless to repeat
ilieirnrgument; only whereas they say, "That
if killin'^r, notwiihilanriiii^ of provocation, bad
not beet! capital, il ooiild not hare been a doubt
in the common law, wtictlier a hntbaud oui;hl
to NufTer deaib, who kitlad his wile taken io ibtt
actofailuttery r" But we apprehend, that tha
direct contrary conieqiienee ti)llow«. that if liigli
prOTocatinii bad not affonled a iletence, then
mdeed (here could nnl hari^ been a doubl ih«
busbaml must have died, berause high proTO-
cation wa* ail that be had to plead : but lti«
doubt was, whether a provocaiion of that kimH
where there was no real corporal injury lo the
husliand bimsetf, wua aufficietit? Aud ilie Ini*
rfetermiues that it waa; and couseqiienlly c^la-
blishes the rule, tlial hi^h and grievous prura*
cations ought to alleviftle ibe piioi'^binenL
The br-ortnl, that " veranos in re ilticila te-
nelur <le omai evenia," olTordB no argument
agaioit ibe panncl in this oa«e ; nor indeed
hatb il been much insiittod on by the pursuer*.
luii>. It IS not true in many cases. Uut, ado^
It holde in no case, except with regnnl to con-
seqiitnees or evenU, thai happen with rrgar4
lo that siiltjpct or oliject, agaiart »lK«n or
H hich Ihe unlawftil act is tlirecieil = aa for in-
utance, if one aeisfire to u liouse, be is giidty of
murder, Ifa tieraon h«pi>cii lo bcbiirtii id tlirt
hnure; orifheunderiumea hwisi*, he i« linlile
for all ihe Bloods iknt m»y he dwlroyed by it>
Ml ; hot be ■• not liable for any uitruMi*
1
i
I
1 15J 2 GEORGE IT.
damafi^e tliat may happen to another subject
casually and by areideut: and ihereforei sup-
pose it were proved, that one unlawfully inrad-
in{? another, without a desifj^n to kill, might in
some eases be liable, it' death followed ; yet that
can only be with reflrard to the person he in-
vades, but never with regard to what acciden-
tally happens to another person. And so Carp-
zoviiis explains the matter, an. ]. §. ult. in
these woras : ** Supra dicta enim (quod nempe
dauti operam rei illicits iroputari defaieat,
quicqoiu tuerit prceter ejus intentionem ex eo
actu secutum) procedunt tantum, quantum ad
subjectuni, circa quod rersatur ipsa malitia il-
Hcite operantis, et quantum ad ea quee illi ob-
jecto per se et immediate junguntur, autneces-
sario sequuntur ; non auten quoad illaquee per
accidensoriuntur, a re ilia mala cui opera datar."
ttesides, it is certain, that the brocard is no
rule at all in the matter of manslaughter, other-
wise there never could be such a thing as cul-
pable homicide ; which it Is plain tliereis.
The next thing to be considered is, what was
and is the law of Scotland concerning this mat-
ter P and first, as to our ancient law, the pur-
suers seem to be the first that ever disputed,
that according to it there was a distinction be-
twixt slaughter and murder. Sir George
Mackenzie is express upon it. By our law,
says he, slaughter and murder did oVold differ,
as " homicidium simplex et premeditatum*' in
the civil law ; and murder only committed, as
we call it, upon forethought felony, was oidy
properly called murder, and punished as such ;
for which he quotes the express statute, pari.
3, cap. 51. K. James 1, appointing that murder
be capitally punislie<l, but chaud melie^ or
slaughter committed upon suddeuty, shall only
be punibluble according to the old laws, and se-
■ veral other acts of parliament, to which we
beg leave to refer [See the abstract of them at
the end ;] which expressly make the distinc-
tion betwixt forethought felony, and slaughter
^f suddenty : and though none of all these laws
particularly express the punishment of inau-
slaughter, as they could not will do, becaube
that wa:( arbitrary according to circumstances ;
yet, as sir George observes, the opposition and
distinction is established betwixt slaughter by
forethought, and chaud tutlle, hud the punish-
ment of the one to be less than that of the other :
and therefore, we apprehend, we may leave
tbui point as clear and undoubted.
The pursuer has endeavoured, to no manner
of purpose, to set up others of our ancient laws,
in opposition. to those obser\ id by sir George
Mackenzie, such as the third siatatc of king
Kobert 1, which, with submission, is nothing to
the purpose : for, first, It does not concern ca-
pital Climes only, but any crime touching limb,
as well as life, iido. Though the word
slaugliter is mentioned, without adding ^ bv
forethought felony,' yet the same thine is ada-
ed in other words, when it says, touching life
or limb, to which alone the act relates, that is,
forethought felony ; because slaughter, by
Qhmud milUf touobad ueitlier life or limb. Tm
Trial of James Carnegie^
title of the act is, ** Alen condemned t<
should not be redeemed." But what
to the purpose, in a question, who sht
condemned to death, and who not?
The 43rd chap, of the act of king Re
is as little to the purpose ; for as it sp<
hairships, burnings, reif, and shinghte
very plain it means only wilful, prem
slaughter, otherwise it would follow, tl
only wilful fire-raising, but burning of a
by neglect, or lata culpa^ would infer tl
of death, which noboav ever dreamed,
the next paragraph makes it further cle
pointing sheriffs to take diligent inqu
*' gif any be common destroyers of the
try, or hath destroye<l the king's liegi
hairsbip, slaughter," &c. Can a mai
common destroyer by slaughter, except
the slaughter is supposed to be by foretl
felouy ? Jt is certain he cannot ; and tht
the pursuer's procurators fall into a grei
take in law, when they say, that ^if
kenM with the assize, ^* Si attentus tin
assisam tanquam talis malefactor, condei
tur ad mortem," must relate to manslai
because the sheriff could not judge of nr
It is directly otherwise : if be be attaii
the assize as such a malefactor, that
eommon oppressor- by slaughter, &c. I
be condemned to deatli. This is an ex(
from the rule, that murder was to be t
the justice-ayr: this law appointed ii
tried in that way, in case the person a
could find his barras or borgh to com]
next justice-ayr ; but if he could not, th
riff was immediately empowered to trj
by- the- bye, this does not concern pai
fact, but concerns that general accusation
ing a common oppressor, like to the ca
sorncr, or one habite and repute an Eg
Nor can the lawyers for the pannel fi
word in the statutes of Alexander 2, wh
pursuers refer to, that docs in the lea
su])pose that niauslaughter was cap
them : the direct contrary appears, tha
slayers were to be tried, wiiethcr ^u
murder or not; and if found not guilt
they were to have the benelit of the
And accordingly Skccu, in his annot
refiTs directly to the acts of pari!
which sir George Mackenzie takes not
establishing the distinction, and to some
English acts to the same purpose.
As to the passage cited from Skeen,
Treatise of Crimes, tit. Slaughter, there
tainly a direct blunder in the printing ; o
stead of these words, ** or casually by
melle," probably it ought to have beeUj
casually, or by chaud melle ;" for
wise he directly contradicts himself, an
acts of parliament which prove the vcr
trary of what the pursuers would mali
assert: yea, the very next paragraph
blisheth the distinction in these wonis,
that the gyrth or sanctuary is nae ref
him wha commits slaughter be foretl
fekNiy ;" trgo^ it was t refuga to him tha
fff] firtht Murder of Ike EaH of Slrathmore. A. D. 1728.
[118
and chaudmelle ceased; and that it Vftm nerer
objected, that malice or premeditate desigi'n was
requisite to make the crime capital." And for
this they take notice of two cases, Ctirric
a^inst Fraser, July 1641, and Bruce against
Marshal, April 1C44. But in the first place,
the procurators for the pnnnel with reason say,
that i£ that happened, it was an error in judg-
ment ; for since the distinction was established
by the old laws, an<l that there was no law at
that time altering or repealing those old laws,
the abolition of popery, and of the flying to th«
kiik in consequence, was no reason for jutli^infj
contrary to tbecif il law's that wore still standing;
and if an esca|)e of that kind happened, it must
be attributed to the over-great zeal, anfl, if ne
may be allowed to say it, a sort of cnthusiastie
keenness of those times : And we do appre-
hend, that the act 1649, and the act of Charles
S, were intended to correct the errors that by
too great zeal bad then crept in.
At the same time, as to the two cases cited,
they are nothing to the purpose; for as to the
first, which is Fraser's, there was not one cir-
cumstance pled or proTcd which could make
the slaughter chaudmelle: But, on the con«
trary, it appeared direct premeditate murder,
DO real provocation, but a quarrel about a staff;
a murder committed in revenue, upon the
slayer's hearing the person killed had murdered
his brother, which plainly implied a preme-
ditate design. What argument this can afford,
is submitted. This indeed may he remarked,
that the case gives some notion of the spirit of
the times; the presbytery took evidence whe-
ther the murder wus accidental or wilful, they
found it to be wilful, and no ways ac<'idcntal ;
their having done so, was taken us evidence in
court, and even the wife of the deceased was
sworn as a witness : things, it is hoped, not to *
be drawn into example ; only so far it shews,
that even then it was a considi-ration i»y the
presbytery themselves, whether it was a wilful
murder or not i* Which seems to point at an
establishment of the distinction. But, in short,
there is not one circumsttiuce in the \« hole case
that could exclude the premeditation or fore-
thought, but all quite on therontrary.
The other ease of Marshall, in the year 164 1,
is as little to tiie purpose; he was lib* lied tor wil-
ful murder, and he confessed it, without pleading
remains, that according to the law any defence, because indeed he had iimmo. Jle
in his confession adjected some cirruiustances
which might have o'lfeu sonieroloiir, hut in-
deed very little for a ddcnce: !*nt he otlere<l
nopniof even of those circunistauers ; and his
own declaration could be no evith nee of ih'Mn.
They were not inlrinsie. but «\iriiiNie qualities
of the dec'laratitm. lie \\iu\ {.nveii rt'penti'd
stabs with a knife. W here k ouuI 1m* th" f|iu>*i-
tion that that was murder f AudtlieNt' tieiu^; :ill
the instances the pursuers bring heiore the :irt
of Charles 2, ii is plain they prove nothni:;' by
them.
As to the act, Ch:ules 2, [Sec tlic net at tho
end] it is humbly insi<4ted for tin; paii:iel, that
it introduces no new law against any perkoa
ihlrtter, not by forethought felony,
d hn eten from the arbitrary ponisli-
rfouibughter. And Skeen himself,
h hii OfGeitioD of tbe words chaud melted
Igil Mil ii I^tio rirft, ** an hot, sudden tuilzie,
vMili* which isopponed, as contrary to
Ifdony ; and cites the act James 1.
.kntteontrary in our law, if the effect
■kMot be tbe 'same ? And upon the
'Miooglit felony,' he in like man-
b tke just distinction, and supports it
MfHttwity of Cioero, in his treatise De
flU^ skre be is writing, as a moralist,
■latiiai orator.
Hi pmaen' answer to the 8th act, 6 pari.
X tifBte trifling; for nothing can be
eki tbe opposition there stated betwixt
fh fekmy and other slaughter : and
*e let statutes, •• that if it be fore-
fUMv, tbe slayer shall die ;'* tbe con-
tliobrioiis, according to the plainest
rkric,tliat if it be not forethought felo-
MH not die, otherwise tbe act is ab-
id IS to sir George Mackenzie's ob-
ipn these words, it is certainly not
iely placed as an observation upon
keime it plainly relates to the act of
fyiod therefore falls to be considered,
KCDme to argue the import of that act.
tfnoen' observation, by way of an-
il Ik Slit act, pari. 3, James 1, is en-
■vkt; for if it extend the difference
■ wHhooight and chaud tneile to all
^'ni u well as manslaughter; then
it establishes the distinction in the
tf MBilaaghter ; and so sir George I^Iac-
HkVkfwise says, in his observations on
^"^vell is in his Criminals. And as to
■■fc observation, that chaud vielle is by
''pBM law punishable by death ; that
■ifalotheact of parliament Charles 2,
■w lie examined with it.
l*" pvraers have further pled, " that the
j*^l if the sanctuary might he competent
Vwcnnei were capital ;" which he founds
^ tbe statutes of Alexander 2. But this is
disputing ; for if the flying to the
joioed with repentance, and so forth,
the crime not capital, it is all the
■wfhiof ; that is, in effect, to render the crime
"apiujooty by another form, but still the
^piffl of death was to be inflicted. At the
^* buie that statute concennng reifs,
■kwhy repentance abs4dves from the punish •
JM| is somewhat |»eculiar, and docs not at
I CSDtradict the other laws, which make or
JpK chfiud mtlU not to lie capital ; and the
■ pin nf thesutate, ap|>ointing, *'That if
NUjUB fly to the kirk, the law shall l>e
Mild observed to them," establishes the
K that if they were not found murderers
Ifcrtbought, I bey were to be returned to
pdMry, and frecil from punishment.
niionamsaj, "That after the Reforma-
^■Mfhe^KS onr/s was in effect abolished,
^ii irtiocttoo brtwixt forethought felony
119] 2 GEORGE II.
accused of slaughter, but ascertains somewhat
in their favour, viz. ** That casual homicide,
homicide in lawful dt^fence, and homicifle com-
mitted upon thieves, Ace. shall not be punished
by death. And then further statutes, That
even in case of homicide casual, it shall be lei-
some to the criminal judge, with advice of the
counsel, to fine him in his means, &c. or to
imprison him." This law seems introduced
to correct some abuses that bad been ; whereby
homicides falling under some of those descrip-
tions, either had been punished with death, or
at least that it had been made a doubt of, if
they might not be so punisbed. W hat those cases
were, does indeed nut appear frotu tlie records,
80 far as the pannePs procurators l^now ; hut it
seems such cases, at least such doubts, were.
But then the act does not determine what was
meant by casual homicide, and does by no
means say, that oothinff was to be reckoned
casnal homicide, except that which was merely
accidental ; but, on the contrary, it leaves
casual homicide to be explained, accortling .to
the construction of former laws, wliether our
own laws, or the laws of other nations.
2do. It is plain from the act, that, by casual
homicide, something is understood quite dif-
iereikt, at least beyond slaughter merely acci-
dental ; for the act is concerning the several
degrees of casual homicide : And so even ho-
micide in defence, and homicide committed
upon thieves, &c. are brought under that ge-
neral description of casual homicide ; and these
last kinds are given as exemplifioations of the
general description ; which shews, that casual
homicide was intended to be opposed only to
slaughter dolote committed either by preme-
ditate forethought, or malice presumed to be
Uken up from Uie circumstances immediately
'preceding the act; and therefore, however
critisal exceptions may be taken to the rule,
yet materially there is no strong objection lies
to it, because when ' casual' is taken in the ex-
tensive signification, as opposite to fraudulent
and dolose slaughter, all the species mentioned
in the art do properly enough fall under it,
and are degrees of casual homicide. And in-
deed it is worth observing, and makes in this
case for the panuel, that the rubric cannot be
said to have been iiuligested or adjected by
mere inadvertency, since the same rubric is
maile use of in the act 1649, and again repeated
in the act 1661, so many years af\er.
And this rubric afTonls another plain argu*
ment, that the legislative did at least consider
that there might be degrees of casual bomt-
cide, and consequently they could not under^
stand by that, onlv merely accidental slaughter,
strictly so callca : Since there can be no de-
grees of that ; it is but one, and does not admit
of decrees. And therefore this is sufficient to
shew, that more was meant than the pursuers
incline to admit ; and if more was meant, that
can allow of no other construction, than to bring
under these words what the lawyers call
** culpalde homicide," so as that your lordships
•ad tae juiy moy JQ^gv fiwa oiwTnwwmwt^
Trial of James CamegUf
whether the slaughter is to be
casual, or really malicious, from
pense.
The last part of that act of par
ther enforces that matter, which g
not only to fine for the use of the :
tions, but even to imprison for cast;
Now, how is it possible to believe, it
with anyju8tice,tbata man might b
for a fiict intjrely innocent, and no
culiHtble or criminal? Yet such hone
accidental is : And tlierefore this
monstration that the legislator und
under the description of casual ho
a fact might eome as carried a culf
it, and was not absolutely accid
nocent.
And this being the phiin meanin
it must remain only to consider, ^
pable homicide, or more particular!
case, does not, in a true and legi
under the words *' casual homicid<
hope we can he under no difficulty
good, from what has been alread;
that even by the Jewish doctors a
ters ofthe Mosaic law, homicide w
and foresight, hath beeu called,
micide;'* the passage above cit<
collation of the Mosaic and Ronr
pressly shews it. 8do, all that b
from the texts of the civil law, i
prove it; since they directly ca
** ex subito impetu, ex calore ii
rixa," where there was just
casual ; '* casu magis ^uam v(
casui magis ouam noxae imputam
all the rest or their expressions |
nominating all slaughters casual
sense, except that which is done
occidendi. Slio, The expressions
old laws prove the same thing ; t
slaughters are called chaud meii
medley^ which is casual : And so S
in the very place the pursuers
manslaughter committed voluntar
thought felony, or not (which
degrees be received) casually by
There your lordships see cAaiMf
pressly brought mider the descripi i
and so that being the case, we a
letter of the act Charles 9, we i
under the first branch of casual ho
And as we apprehend this hoU
so it holds more particularly in
case, where, whaterer was de«i|
Brtdgeton, yet, as to my loni Stn
killing was casual, and therefore
nnder the words of the statute.
It affbixls DO solid argument ag
the act of parliament bearn these v
removing of all qiieatioD and dow
arise hereafter in orioiinal pursuit
tpr." For, Imo, Those wonls i
understood with r^ard to the parti
ed Dpon, that it is for removing at
thooe partieiiUars ; for it can nexar I
thai Ibif or«py M of i^iriiafMit 1
ft/the EarinfStTnlh:
en B{t«i DDfoivseta casra, mkoy
'illupjmn that roulil --' ''" —
of tb>[ law : I'ur in
A. D. 1728.
e, ho-
ifiutfamob, Btrkitlj
^■■^, ii.li iiiini'i' iiiFiiF nf tlie noi^i; or
kaaa^ cniiiEiititi! ill ^iii.'ii>abDK Uie mcspc
rfklWKiuillj j in |jr ironed, Bndeuilem-
■■nfiaia^iti : anil mtoy other caw! mn;
kl%«i fii'i Jito, AccunlrDK lu tlie inter-
iili^n, Ibe *clof parlianienl
Cl-J
ihcwnae we give ihem; sod, ou
i> t dnta aM reinote all ^iieslionH,
'luwiicidn, anil lliis tpry case be not
bilmi tlie law ha« •Uiutsil (iiithinB:
B)b«r inie <*■; or other, but hsth
-I upon murder merely accideolal,
kitUint, and the ol'liers lliprein
, thai it may he pl?<l with-
. B culpable lioiFiicide ta a
||f iHarioide in deteuce ; lliouj.'ti oat
■" ^"*llre (if life, it is in dof'ence
' h^vry thrcKteotd, and ex-
jwior injury alreaily i^feu :
noaideratinna, ue humbly a |>)ire-
181 of obrlunieiit makea DMhiii|i|'
^DM, hut ratlier favuui'M him,
nl a hnmidilt^ imrely
tlint waa killed : and
irely diiiingiushe$ hi*
' olber cue that hnih been tried
parliainenl- And it may not
lu ii»Upe, ihut air Geoi^e Mac-
" Tb» wurd " cbhuU,' ia the ru-
terfik^ia<i, I* ukeu in the bx W|n>>fica-
'>Kk." Aad » >-y not Iheu tali* it in tbe tAtae
lw%lfcali n'in tlic alatutnry )Mrl f
jttivw ptwin tu [akr ludice d' sir George
lil^Mw'a DbaervaliniiB upon the 5tM act,
^mn. AnJ in itu) fir«l (ijacr, it'cir Georce
liflffiHBd lo go aa far in hi« niiininn tw tEe
■IMa pIraJ, we must beg leave to oiiiioDe
lfli«,i«l sAoiit thoiiitvrprelaliiiD ol il lo
W0 ImMiI^' Judgment, as ntil suffidiently
■nanng hM opinion. 2iIo, sir George saya
" " ' ~ " U ihe alauKhter'f hetii^ cmduI in
•e, where the lilotv was inlended
■er MTiuk by Iktatity. 3tio,
Il (0 Hu liir aa the ]iurauen
Id auMdi tU«»i ; Ibr, in hit tibHTTBtion on
M ut4 ilu uri, liB nnly «ayi in |^neral,
Tbal cA^itd mtiit at Aomicidiiun in rixa com-
^iMw, II npital Ijy our [ireMUl kw :" and kii
im aamaaj v^'Mni Ibr iuMaace, where the
A* m tJio priiTokor, wlit<ra he reilffatre
ktAv> )■ auch a maimer, as to shew a Ibre-
bvkt a^ rnriBCil deii^n, although not ni'e-
■UU«d lor a lonj; intvrtat ut lime betore :
m m tiwrce dnm l>v »u mtuuiq uy, that
4ltcraarda I'l l« iioIiC(nI.
rtatiuo liji III till' OOlh act il no wayi
' " That uuirder.
il piiQuhatite nilh death :" by which lie n
mr-an pretiivdiiatcil tnatice, and that ta t
liir no doubl malice, wlieiv it oui be pri-iu
IVoin Ihe iict ithelt', anil where tli« counary _
not >|ipear from circiiuislances, ii puiiisbl
by death, without further lurellioi^hl ; '■
then he aubjoins an esce|ilio. ' ' ' '
the mailer where it was, " exoepi," sajBta
" it be fMUoJ j" that is, aecordintr lo Ihe i
of I lie law : and so the gueslion remaiut, w
caaiial in Ihe nense ol' that law ?
The pursucra u«o an argument, which t(
to lie or no force, " That if inaae1aught*r *■■
not capital, llien the crawn could nnt parilon
any capital slau^terj because by »ur Uw the
crown could not paidon murder." IVe mit;ht
easily ailmit the whole, wilhoul biiniog our
argument ; for if it be true that the crown
could not nanloD murder, then ii in likewice
true that ne coiiJd not panluu any shiiighter
tliat was cftpital ; because no daughter m'aa
capital but murder: neierihelesii the puskion,
that llie crown could nol pardon murder, ii nM
supported by practice, and, we doubl, not by
nor law; because iu aereral caaei. cten ok'
murder, Ihe very thiutc statuted is, " That lb*
|ierB(in of the criminnl slmtl be in the kisg'a
will ;" consequenily ihe kii^ caji pudon, u
well aa order to he put to deaui.
The pursueri, in their InfutmatJuii,. next gw
on lo nienlion a ^enl many caaeii ihii bavft
been judged by the Coui'i since tlie act IfiGI ;
anil the first menlioned is ihitt of Wm. Dou^-
la>i, which appears iu the Ilecords, and i» no-
lie^ by sir George Atackeozie, and is indeed
nuticedbv hiui u afoihtdulinnfor saiui-ihinga,
wherein be leema tn go tun far. But Ihi* ewe
will iieief deicj'ie any regard; it \ias ilwaja
been linked uprm as a liaril one, end we ars.
ulV-iId a tejiroach on the justice of the nation.
But at lh« same lime the fdulidid not lye oa
IlieCourij il uas tiuly Ihejiiry ; fur ihe Irial
went in i^eiieral upon tlie url and {larl ; awl
there Mppears no piiriicahir pleadings to this
purpose un record in thut case : tu that what
sir GeoT^ Bays of il must he froin mere me-
mory of tbiuifs ont thouKix Ri to be recorded.
The next case mentioned i» that ol >'ico|.
son, in the year 1GT3, which can never tnajM
for the piirsuem, Iiei-aiise there your lordships
aiulained boih tiie libel and the defeuoe, Iboiigli
indeed Ibe defciioe wa» not prated : and ihm*
fure, if the pursuers say, Ihnt the dclience waa
U|>on chauj mtllr, or culpalde homicide ; the
case is witli us, because your lordships aui'
taiaed Ibe defence. And eiUuiugJi i|i reality
Ihe crinie was (trored to be ttilfut murder, and
the derciiie noi proved ; yet so far it is on th«
paunel's side, ihni ihc advitLate iiuisied Nicol-
son. was vcnuni in re iltkita, by varrjins a
gun. which be ncknuwledued uaed lu gu naou
haH'-beud; yd y»ur lordsiiip<i •usiained tba
ilef^iioe, •' That the gun weui offiu a slruiT*
gle," Aud if an arguneol from a Uwycr'a
pIcBdiug be Kood for any l1>ing. sir George
ftliLuktuixic idi-d for the pannel, '' '
' 123] 2 GEORGE IL
•n, *' That there was no prejudice against the
|>er8on killed, and that the gun went off in a
■trufr^e." But, indeed, the case is naught in the
argument, and it seems ?ery strange why it is
cited : it is true the man was said to be drunk,
and there was not a pre? ious quarrel ; but then
there was no provocation, no justa causa ira-
cundiay and no iracundia at alt ; but the gun
was twice deliberately snapped, and the third
time the man was killed.
The third case mentioned, is Murray contra
Gray, yet less to the purpose than any other :
for there, the giving the wound was libelled so
far premeditate, that the slayer followed the
person out or the house where he was, and
killed him without an^ provocation : and not one
single fact was pled \n defence, but a strange
demand made, that the lords should make an
inquisition, in order to discover who was the
first aggressor ; but it was not once pled that
the defunct was the aggrressor or provoker.
What can be the meaning of citing such cases?
The next case cited is that of AinI, in the year
1693 ; which indeed is something more to the
|mr(K)se, but yet does not answer the pursuers'
intention : for the lords did not there find, that
every homicide was capital, except what was
merely accidental ; they indeed sustained the
libel, and repelled the defences, which were
mainly founded U|M)n provocation hy ill words
from a woman, and her throwing a chamber-
pot at the pannePs face, who was a soldier :
which the lords did not find sufficient to excul-
pate from the libel, which bore reiterate strokes
to have been given the woman in her own door
(which, by the b^re, tvas hamesucken) she
thrown over ihe stairs, and pursued by the then
pannel. That case was very singular : first,
an attack upon a woman by a soldier, who
ou};ht to have contemned insults from the fe-
male sex, at least, not returned them with any
blows : DO injury of that kind from a woman
can justify blows given, much less reiterated
blows, and deliberately trampling to death,
throve ing her over her stair, and still continuing
to pursue her : there, the presumed difference
of strength, and difference of the sex, made
such an attack a barbarous murder ; just as an
invasion by a much stronger man a^inst a
weaker, or by a man against a woman, although
not with a mortal weapon, would make a blow
with a mortal weapon, given by such a woman
or weaker person, come within the description
of self-defence : which is a case that lawyers
state, although the same thing would not be
good, if they were of equal strength, or that
the invasion was by the won'.an, or person of
weaker strength.
Another case mentioned, is that of Carmi-
•hael in the year 1694. But sure your lord-
ships must l>e weary of so many cases, so little
to tlie purpose ; for neither there, is there one
circtimstance pled upon to exclude forethought,
or to show that the thine was casual in any
sense ; but some trifling dyjections against the
firm of the libel : only, indeed, drankeDntss,
by itself, was foandcd on, which your kirdships
IVial of James Carnegie^
did not sustain. And who can doubt i
be sop
The seventh case mentioned by the pii
is that of George Cuming, in tlie yeai
And upon locking into the case, it n
owned, that it seems a very narrow, bar
but then the whole burden of the pi:
pleading turns upon this. That supposin
was a rtxa, and that the thing happenc
a sudden quarrel ; yet Cuming himself <
first provoker, and the aucior rixa, and
fore could not plead the benefit even <
defence ; whicn indeed brings the case
what all lawyers ag^e on. And had
been for that circumstance, it is imposs:
decision could have gone as it went : fo
feet, the kingf's advocate admitted the d
barring that circumstance ; but insistei
that as what governed the case. Yet s
decision is narrow.
The pursuers also mention the case o
net of Carlops, anno 1711. But it is
ajgainst them ; and it being to be noli
the pannel, shall not be dwelt upon here
The next case is that of Hamilton of
anno 1716 ; which does not all meet : fo
a plain murder was libelled, that the
first made several pushes with his swo
scabbard upon it ; and not content wit
drew the sword, and gave the defunct th
tal wound. And no provocation was ple«
on the part of the pannel, except what w
bal only. And the only real injury, by s
with the sword and scabbard, was ad mi
have been given by the pannel. And i
it was there pled, that the defunct I
rushed upon the sword, that was ronti
the libel. And if the fact had come so c
libel would not have been proved. And
fore, that case does not all meet; foi
were not sufficient circumstances to c
the dole, or so much as to make a honn
euiposum.
Another case they mention, is that ol
mas Koss, and Jeffery Roberts, 20th
1716 ; which makes against the nursuei
is set forth by themselves : for there tli
did sustain the defence of provocation by
receiving a blow on the face, being pullet
to the ground, and beat with a great s
car- rung, relevant to restrict the libel tos
trary punishment. And thongh the
**To tne imminent danj^erof his life,*'
sert, as they were pled m the defence ; ^
was not a fact, but a consequence inferrc
the being struck with a sticK. And if th
culum vita bad been the foundation on
the interlocutor went, then it must hav*
unjust ; because no man alive ever dc
that a man in self-defence might lawful
without being subject to any arbitrary p
ment whatsoever : but the case was, th«
lordships found the provocation and real i
reduced the fact to a homicidium cul
Yon indeed sustained the reply, that tl
funct was held by Jeffrey at the time of i
ing the wound, becaoM tbit oxdodcd tl
for the Murder of' the Earl of Strathmore. A. D. 172S.
[125
oT the pinnel's being unon the ^iinJ
be gave the wound, and made the fact
It to murder ; because it never was
d, but if one stab another, especial iv with
*, which is stabbin|^ in the must baruamus
when that otiier is held, and so put oot
ilaie of Joine further injury, that is mur-
jf the la w of all nations.
tfonoers likewise mention a case of Da-
i^ without noticing either date or circum-
■; and therefore the pannel must con-
Ibere was no defence projiosed, exclusive
Me or forethought,
caaeof Lindsay and Brock, the Greenock
I, is very far from nutting the ca^e out
k, or indeed touching it at all. The
18, that the defunct was enticed out of
Be, and was attackefl by two at the same
asd when he and they were on the
Ij one of them, which came out to be
y, slahhed him in the throat with a |)cn-
Tbere your lordships did not sustain
■e as capital against them both, even
ae art and part, but only against the one
Nokl appear to have given tlie stab, and
■K ont to be Lindsay : but tlien indeed
ood, not without difference in opinions,
vcriheless he had the benefit of the in-
y^ upon this foundation, ihatthongh the
MM was dolosumy because of the cir-
laers, yet it was not from malice preme-
: and the majority were of opinion, that
JRBnity excluded nothing but prcniedi-
■nier, and did not touch any case done
a, notwithstanding tlie person guilty
W the auclor rixa. This does by no
I ^etertnine any question lietvrixt a dolo-
ai cklposum homicidium ; for that fact
safitd to be do'osnmy and indeed so found.
ne. u proves that an indemnity may reach
l^ameiJium dolosum^ ^^ here the dole arose
^ely, and not ex iutcrvallo ; hut that
oth.ng to this question, nor is it proper to
ipiiii the argument about the iudenniity,
lai the judgment is given.
r%<e of Mathews, the soldier, the pur-
idmit, was of the same nature, and so
no other answer; only, that, in that
hirre were no circumstances sufficient to
e the dole, or make it only a culpable
de.
M are all the cases the pursuers have
'ned. and, if numbers would do, no doubt
is enough ; but your lordships are to
bow far to the purpose : and one thinj^r is
Uible with regnrd to them all, that not
them touches the cn*i** in iiand, in so far
?erDS the slaughter's being casual as to
d Strathmore, the invasion being intend-
iDfl Bridgeton.
DOW the <xiunsel for the pannel be;; leave
notice <d' several decisions, even binre
vhich directly establish the point pled
pannel ; ami thc^ first is I\Iason's case in
ar 1G74, to he seen in the Itecord ; and
iffrred by sir George Mackenzie. Ala-
is accuitd of killing Halnton j tlia de-
fences were three, first. That Ralston had fol-
lowed Mason from house to house, at last put
violent hands upon him ; whereby Mason was
forced to throw him off*, and that he fell against
a stool. 2do, That the wotmd was not mortal^
but Ralston died ex maloregimine. 3tio. 1'hat
the homicide was merely casual, and io self-
defence, RaNton being the aggressor. The
lords sustained the litiel only rete\ant to infer
the panam extraordinariam^ and separately
sustained the other defences to assoilzie in tO"
iuntf and remitted all to the knowledge of tbs
innuest. Here your lordships sec, the killing
only sustained ad panam extruordinariam^ with-
out regard to the three deft: noes of casual ho-
micide, self-defence, and dying ex malo regi'^
mine ; for they are all sustained separately to
assoilzie, even from the pana extraordinaria :
here then was a culpable homicide, sustained
only ad panam cxtraordinariam^ though neither
merely casual, nor in self- defence ; and so thera
can be no judgment more direct upon the point
now pled.
And here the pannel must notice, once for
all, that it makes nothing to this question, that
iu that, and other like cases to be mentioned,
a mortal weapon was not used ; for it is one
question, what is sufficient to make a liomicidt
only culpable P And quite another, whether, ii|
our law, there is such a thing as culpable ho-
micide, though neither merely casual, nor iu
self-ddence P That of the using a deadly wea^
|>on enters into the argument, whether a homi-
cide is dolose or culpable only ? But it makes
nothing to the other question, since homicide
may not be merely casual, although no mortal
weapon is used, as appears both from this de-
cision, and the case of Bain, cited for the pur-
suers.
Another case is that of Cricrson and others,
12th March, 168 1 ; where the paunels being
accused of murder, for killing the defunct in a
scuffle ; the defence proponed was, that the de-
funct was the first aggressor, and did invade
the pannels, or one or otiier of them ; and that
William Crierson, or one or other of thera, be-
ing standinuf hefore the fire, the defunct threw
the said William, or one or other of them, iu
the fire, and fell upon him himself; and then,
after the scuffle was over, the defunct did rij^e,
walked up and down, discoursed, and of new
aga>n heat the said William (srierson, and
threatened to kill him if he would not be gone;
that the defunct went in goo.l health to the
door thereafter. These the lords sustained re-
levant to liberate from the ordinary pain of
death. Here is another decision in point ; the
crime was not found merely casual, or the ('ourt
must have assoilzied ; at least, could only have
imprisoned, and could have iiillicted no other
arbitrary punishin. iit. But that was not the
case, it' was Ibund culjiable, and not merely
casual ; and therefore the punisiiment rcbtriei-
ed. Sure then it is not true in law, that all ho-
micides arc cajiilal, un1e»>s the}- be merely ca-
sual.
A third case, is thi^t of 3Iaxwell and otiiar-
131]
2 GEORGE IL
ftlaui^hter; for the peace is broken by the
penton killed, and with aR iudignity to him
that received the assault : besides, he that was
so aflTi-onted miffht reasonably apprehend, that
he that treated nim in that uianner might have
some further design upon him/' Your lord-
ships see how close this is to the case: the
insult ^nd indignity done by Bridgetou was
?ast1v stronger than any thing here mentioned,
and having received such an affront, the panuel
had reason to expect worse ; more especially
when, as we offered to .prove, Bridgeton was
endeavouring to pull out my lord Strathmore's
sword.
We must likewise humbly ref^r to several
cases set down by serjeaut Hawkins, in his
Pleas of the Crown, which fully agree with
what we now plead ; and particularly take
notice of what he says, pag. 84. " If a third
person hap|>en, accidentally happen, to be
killed by one. engaged in a combat with ano-
ther, upon a sudden quarrel, it seeiqs that he
^ho kills him is guilty of manslaughter only."
And it would seem that there is even a diffe-
rence made, betwixt killing a person that en-
deavours to interpose, if he tell that be comes
for that purpose, and killing one who acci-
dentally is interposed betwixt the two contend-
ing parties; which was my lord Stratlimore's
case. The killing him who interposes to se-
parate, if he give notice what he is doing, is
reckoned worse than the killing the other.
And this obsjervation shews that the present
case is stronger than the above-cited case of
Graham, where your lordships restricted it to
an arbitrary punishment. And what that au-
thor observes, confirms a distinction we have
made, betwixt a man quarrelling with another,
and killing a third party, where it' is proved
the killer had a felonious intention to marder
the other, and the case where that does not
appear; for however, in the first case, he
might be guilty of the murder of the third
party, yet if a design to murder the person he
quarrelled with is not proved, then he can never
suffer capitally fur killing the third party : and
we have already endeavoured to prove, that
that must be the case as to Bridgeton, where
he ga\e the provocation, and no act followed
againsi him sufficient in law to establish a
desi^ of murdering him.
The pursuers have cited the same books,
and Mawgridge's Case, as for them ; but that
we submit. The particular cases of Hollo way,
and Williams the Welchraan, spoke of by
Keyling, are not at all to the purpose : the
Weli-hman's case was no judgment; but nei-
ther in that nor in Holloway's was there any
reul |)ersonal injury, on which a great stress is
laid in all these questions.
The pursuers mention another case stated,
but never adjudged; a person shooting at
fowls with an inteut to steal them, accidentally
kills a man ; that will be murder. This per-
haps may be justly doubled. Sure it wouM
be too severe. But supposing it were so, it
iiof M lioportmot: tttaliBg, treo of fbwliy
Trial of James Caruegie^
by the law of England, is felony of
prepense ; and where a roan attemp
commit one felony, does another, there
doubt but in strict law he is guilty of the
committed.* But what is that to the a
provocation by a real injury ?
The pursuers have quoted the auth<
V<iet, and a decision observed by bin
Sande, to prove, that where one man i
tended to be killed, and another sla!
crime is capital : in which, no doub
differs from many as learned lawyers, i
of the other side. But his opinion, a
of Sande, is obviated by what is ahead
it is only in the case of no provocation
injury on the part of him who was desi
be killed. And Sdo, It is always ta
granted by Voet, and all who are of tl
nion, that the design of murderins^ the
intended to be inviuled, do appear and is
but we have already shewn, that cannot
in the present case.
The pursuers pretended, that then
circumstance in the libel which implied
against the earl of Strathmore, viz.
the thrust given was followed by a
push." But as there is nothing in this
may be the subject of imagination, 1
never be the subject of proof, unless
pretended, as it is not, that the uanut
back or out his sword, and made a
thrust ; which will appear not to be tri
the nature of the wound ; and the thr
be found to have been so momentary,
was impossible. Sdo, Jf any thing 11
happened, it will appear, tfiat there
more in it, but the pannel's staggei
moving the sword, by his weight Icanin
it. Stio, There is no relevaucy in it
the fact being, that the pannel push*
Bridgeton : and no circumstance will i
appear, that he knew he had touched i
of Strathmore till some time after the
was perfected.
The pursuers further pretended, " '
they had libelled malice, they would
from other antecedent facts that had hi
some time before, whereby it would
that there was enmity betwixt the deft
the pannel."
It is answered for the pannel, Imo,
such facts being libelled, nor, to this
condescended upon, cither in the deba
formation, they can by no means er
* At the Lent assizes at Chelm
Essex, 1763, two sailors were convi
the murder of a farmer : the case v
sailors came to steal the farmer's foi
farmer with his son pur^iued them ; on
sailors struck the farmer several blowi
arm, which (though not likely) kill
This was held to be murder ; tit*cause
they were about was unlawful ; but thi
after several respites from execution,
his majesty's most gracious pardon.
Edition.
2 GEORGE II.
ISfiJ
CuuA JuRicuBu, S. D. N. KcnK tenU in
novoSeHioiiudanMBargi de Kdiobui^b,
wcuDda die tncnaw Augurti, muUmjoio
MptiDgoiteaimo Tigninw octavo, per
boDorabile* finM Aduunm Cockburvs d«
OrmiUoun, Jwticitriuni Clericum; Do-
tuiniim Gulielmani C&lderwiwd de Pol-
' tnim; H»([i(trilm DiviJein Erikine de
Dud, Dominum Giitlunim l:>riDKle de
Nrwhall, et lUigiMraD) Aodream FTBteher
de Blilloun, CarainiaiiouriM Jiulidvic
dicL 8. D. N. Regia.
Cuiu kgitime affirmata.
JiMKt Cam«jt«,of ElDbiven, pannd.
Tbe Lordi proceeded lo make choice of the
ftUowiog Anizen :
Sir Robert DickBMi, of loTenak.
Geonce Loch, of Drylav.
*Jotin Wiiioa of Slumja.
' Watt. Riddel, of GraDton.
Geor|re Warrender, of Burntafteld.
Tho. BioKOfOf Bonin({Uin.
•Geoive Haliburlon, of Fordel.
Jtmrt Bftlfour, of Pilrig-.
Robrrt Duodat, merchaat, in Ediabnrgfa.
Darid Inglis, aier^aiit, there.
David Burd, mercbaot, Uiere.
Alex. Blackwood, raerchaol, there.
, 'John Couls, mercheni, there.
Julia Slereo, merchaat, there.
James Iter, ^IJsmitli, there.
The aboTe asaize beini; all lawfully ■worn,
•od no lanfiil objectiau in the cootrary, tbe
punueis for prabatioa adduced tbe wiioccin
■Iter de[ii>niD<:, vii.
Riitrt Hipburn-c, hammennau, in Forfar,
flolenm'y tw^rn, ixirfreil, cximiacd and inter-
rugate, de|ioneu, Tuat lie vat io tbe lii.in of
Vorfar, the 9:\i ilay of Aluy last, betwiiLt the
hours of i'ii{ht and cine o'clock at nigbt, where
be ilid liee the decvaaed earl of Strathinore, loril
Roifrhitt, aod Mr. TLoniai Lyoa my lord
Siratbmore's brolher, nalkiofr ia tbe tlreeti;
and al thf amu lime did see Lyon «f Bcidge-
lOD, and Fiabnreo the paimel, Elandiuii uear lo
the lady Auchiahoaic her houic, upon the
alrecl; what words pa-sed betwit^t then), Le
being- si a ilisuucu could not hear; iiw firidge-
* — --- e Fiuliaven a |iii£h with hit band; and
Triat ofjamet Carnegk,
oot know irbelber be got it drawn
law Fin haven draw bif iword befor
offered to drai* my Ion) 8tialhni
when Bridgeton wa> coming upfTo
where FinhoTen fell, he lookei
ihonkler, and seeing Flnharrn wil
drawn, be went fatter up to my
more, aiiaid is ; and when Finbati
my lord Strathmore being standing
of butts from the place where Fii
ud when Bndgeton came op, and i
to draw my lord Strath more' i hw
LI, my lord turned bim about, and
Ion aaide, and made tome tte^S to
haTcn, who would be at that (irae
eight ells from my lord; and he
lord endeavour to take Fiuhaven
when they roet, and in a little all
he did tee my lord withdraw himse
the rest of the company, and sa
down his breeches, and (ifl up hii
heard him say be had got a woui
pealed llieie words three titoes, ai
pat op hia shirt, ond in a sliorl tin
taw Riy lord fall lo the ffrouiid. A<
lerrogale, ifbe taw Finlia*en the f
a thrust at niy lord Slralhmurc ivii
Deponed, he did not tee him maki
but al that time did see no other s
but Finhaven's ; and after uiy Ion
taw several other twords drawn.
That there was no other compai
with my lord but uiy lord Ro^el
OHO brother Mr. Thomas, bcfure lb:
and Finliareu eame up : AoA tliai
this that be has deponed U[H)D, fr
abop-door, which was about teveii i
dikiance from that port of tlic si
my lord Siraibmore wa* standin";.
ioierro^Ie, if he knowt n hat cam
ton, after he came up to my lord \
That he knew not wliat bccume a
ader my lord put him aside : \i
wat at much day-light s« he could
has deponed upon : And that F
naanel wo* in boutt ; aud Ihal he
fast up after Bridgelon, but Brii
flitter lotiards my lord ; and thai v
Strathmore felt, he saw Thomiu .
man, lake up my lord from the i
saw no other body assisting. ]
taw the piinnel't sword tttisled oul
bv Sir. Thomas, or my lord Ri
which of I hem, he koon's not;
was after my lord fell. And depoi
. did see the »ound in my lopj't b
I below the navel; and that it iv
Deponed, Tlial he taw Finhavc
iword wat twitted out of hit band
Fiabaveii fell in tbe Ktiiler ; and be taw a
▼ant of the ilcceucd earl of Strathmore help
Finhaven up out of the (^Herj awd when
JeTy; but that Bridgctoo comii^f up
ftaler ikaa Finhaven, he taw Bridgetun offer
••4M>BjlotdbinibBan'iiwatdi bMdw
And thia ia tbe tratk •* he ihoul
U«d. noBLrr I
Ad. Coci
Xal*, Thtynemttta for the p
Oaefsn pwgtDg) olgcctad to ^ i
\Si} finieiiimltrB/lheEarlqfStratlaion. A. D. 17«S.
[13S
^M HrftaM, why he oi^ht out to be k I Bridsetoo riUiliDg tM[elb«r near Is the Mj
■■Miitbiieue-, beciuM, •ince hit citation Aui'literhonu berbdginf; and mi ontherc-
ke km left to ibe cuiwilenlwu of
•IWllclbBkedGiid^he had now an opuor-
aM ku| bin, and would dO it if bo
' U tMog iheae cxptMHOo* were
Mf (HNS igaiiiit him, by two coQcurring
vHMkia MeoM of the court and jury,
taABN^lM aune niKht be lo luarkM in
iiWi(f aOMtmal. Whicli, and iliii de-
t."'
laif hrd RiatkiU, Bo)«nnly aworD, pDrt^ed,
hWhJ inlerroirate, depooH, (beinrin-
■Wnh- the paonel) That the time libeled,
fcfamU «n tltK Kccnioo of ■ borying, wai
iMliieMnpaay with the decnsol carl of
HMir, the pnonpl, and olb?r« ; and loge-
■iifdiwd in Mr. Cirncfrii! nf Loun*a
Ip^ mt after dioDcr and the burying was
"^rj Iweiher w*ot to the haiue of Mr,
l,titA ofPor^, where t)iejr conttDUfd
(MMdenble lime, drinking a gUw of
and after tfiej letl that hooK,
in the hooae of my lady Aocb-
in the same low 0, the panncFi Bitter,
I deceased Eari had g«De to make a
k Dffwneil, That during all (bat day. and
Itwreral nlicei where tlic deceannl Eari,
iMad, and tbe reat of the company were,
jitdrponent, ohaFrred nothing but grent
inaadfrimdahip betwixt the deceaaed Earl
lit iianiiel. Deponed, That before Ihey
nam the lady Auchterbouie'a, the
la|ipeared lo iIig df|inDeDt tu be drunk,
I br gune in drink, to tbe degree of
tiirii;; and he ubs erred the pa unci
plrutifully ill thc&e several houcea. De-
ll. That he the di'poucni, during the time
bbrin^with the said compaov, wanmoatlv
Htd ID con venial ion with the ileceiMd Earl,
■ bd not the occakinn to oLierre vvliat
Biri in convcrSBliuu bctwJNt the poiincl aud
Lyno of IJridt^tun : iinil beiug interrogate
■ ahat be knew of ilie char.ieler and
^a of the pauoul ? Deiwned, That, ac-
Meg to ilto ilrpaurnt'it kuowlcdgo of him,
U bail bi'i'ii of Uing cnntin nance, aud |>ar-
iag to tlie characler Im the
RMdWein the country, be waa thought
taaite ftiarrelmnie in lii^ temper, but lo be
ll peacriitilc and t;n<id dispomtiou. Causa
tMtipultt. And ilii« na»tlie Iruih as I
nld unvrt lo God. Rosehill.
D. EasKiNG.
ViUiaai Dmi;lai, lawful aon to William
^(lu, )a1e proTOft nod chirurgeon-apolhe-
4n Forfar, solemnly utrnrn, purged, en-
M, and intarroifite tor the pursuen, De-
^d. That on that day wher^un the deceait
if litnthmore wan woumled, he the dppo-
*aa at Forfar, and on the itreels, wlicrt
4 tee ibe Earl with my lord llmchill and
n. Lyon bi« brother, and at the aaiiiE
aAer lookinir about, ba obeerred FinbuTm
leaning and falling backwardi into a keonel i
-~ I alter getting oitt of it, which he anppared
the deponent to do very ioon, he drew Ilia
award, and with it went up to the oonpany
where the Earl, Bridgeton, and the real were i
and at tbe flnt aight, upnn the patutel'a m>
proachiog to ilie Earl, Bridgeton and Ik
reft, Bridgeton was then inlerposed bclwist
the Earl and the pannel ; but all of a auiMea
and a clap, the Earl came to be interpovad
betwikt Bridgeton and the punuel ; and i|t lli*
time iif the aaid Earl's in terpnaiiion, tliepaond
was within the length of bin anord at the plac«
where Bridgeton was atanding ', that ii to lay,
had been atanding. Deponed, That he did o»>
aerre tbe pannet make a thrust with hii aword,
and at the time of to duing, the Earl wai ataod-
iug next tbe paonel, and hit face lowarda bin.
Deponed, That the Ear) teceired a wouod in
hit belly, and aJUr receir iug it, heaaw him poll
hii ahirt from under bi« breecbet, aud at thn
same lime taw him blooding, and toon tbere-
after hit lordship tell down, anil be heard
him say, that he hail got it ; and before th*
Earl fell, and while he waa upon the ground,
he did otwerre his brother Mr. Thoma*, with
hi« drawn swori), twist Finhateo'i tnord oot
of his band, after seeing and hearing aoDM
clashing of tlieir swordt : but tt the time when
Finliaven made tbe piuh,a* taidis,heabserTcd
no other aword drawn but Fiiibareo'i ; and at
the time when thepinocl recorered liislhrilil,
the pannel aod the Earl were vrry near aneaiH><
ther : and all this time, the dejiooeDt waa
about the length of this room, or tome more,
distant from the said Uarl aod the pannel,
whose aides were oppmite to the deponent; nod
aRcr the earl uf Strathmnra's I'all, and that liit
bnither Mr. Tliomas twilled the sirord out of
the pannel's hand, the iiauDtl, who waa in
lioots, ran towards bis si»tf i 's dnnr : uftcr the
deceived Euil was carried Ut a house, and bia
wuuoil WHS driDl, he heard his lontship say,
th^tuHer the sword eniNcil hit helly, he tho
pannel gave it a second thrust. Dejuined, That
when he observed Finharen liiiliug into tho
piHldle, at ahnvehuiil, there was none stauding
with biinor by liim NutMr, LyouorBHilgeton,
And wlint he lias above ilepoucd, hsppened on
ibcQibday of May last, alwiit the hour of nine
id niglit. CuM(t i;ci«ari.r^<ifef. And this hm
truth as he should answer lo <iud.
^ViLL. nouci.a*.
1>A. Erskine.
AndrtK Douglai, alto lawful son to the aaid
William Douglas, iiultmn1y8iTurn,pui\:ed,exa-
miiii'd and Inti^rrogate, Uipo'iPil.'l'hat the lim*
Mid p lure libelled, thedi'|>ciiii-[ii taw JoboLyon
ul Uriil:;('ioD push the |iBniie! upon tlie breatl,
whereby the puniicl tell ioihe gulter.which tbs
deponent ajiprehendril would have taken liim
up to the kui«i that it Has a very natty
!■ nkiinrt Finharcawd Air. Lyon of gutter; and that lit utr tbe punel uiatoot
1S9]
? GEORGE II.
7'rial qfJamet Cartiegie,
«iriIieffiiUer, ■«(! immeiliately drBwhiaiword, |
by vbicli lime BridKeioti tris walking' off
towards my lord Slralbmora and Dthen, who
were ikiDdTng u|ii)ii the atrecl ftbnul ttie diMmce
of tiie length of lhi« Toom fivm the forefaid i
? utter : and drponed, That be fullowed at\er I
inharen immixtiBlely, after ataudintr a little i
while with bin comrades; and llint before the
tfeiMBeat came up to the place wbere my lord
SUBthmoreaml the other genllemni were stand-
ing', my lord Stnthmore h^id tkllen upon the
streeL Am) tbe de)>onant being nslced, how
■oon that ba|^ned f De|>ODed, That it was
in ■ moment ; and that wbco the deponent
«ame up as atbresaid, he raw Mr. Thomaa I.yon
and FiohaTcn eoeaged, and making panes at
each other with their rirairn awotds ; which the
deponent explainol to be odIv a clashing with
their awords ; and that Mr, Thomas Ijyon did
1 twist the sword out of Finbaren'a
C*
pattt. And this was tlie truth as he abould
snswei In Giid. Anorew Douaua.
And. Fletcueb.
John Fefricr,mideBter ID Forrar, solemnly
nrom, purged, examined and interrogate, de-
Ened, That at the time and place hbeRed, the
pcnent baTtnc occasioD to go to water bia
master'! horse, ne mw Bridgetou and the peU'
Li they came out from tbe lady Auctiter-
nouse's tod^ng, about the briilee^une near
the shambles, and there heard Bridgeton say
to the jiaunel. You mnst gi*e me an answer to
my queaiion, which tlieileponent beard was. If
the pannel would give his iJaugliter to the lord
Rowhill? And upon the psnuel'a saying. Ho ;
Briil^ton asked nim, If he would drink a bot'
tie ot wine, and if he would drink the king's
health ? And u]Kin the panuel'a refusing to do
either, the deponent saw Bridgeton take hold cf
the pannel by tlie breast, and Tioleotly push him
into the kennel; and heard Bridgeton at the same
lime, saj. Go, and In damned, and your king
George, whom you love so well. And thereatter
Bridtieton walked towards mv lord Brrallmiore,
Hr. Thomas LyoD, and my lonl llotebill, who
were standing upon the street at aonie little
distance ; and that Finhsren was helprd out of
the gutter by a footman of my lord Stratb-
toore's: and that upon the pannel's getting
unon the streets again, he immediately drew
his sword, and ran up the street afler Bridge-
ton ; and before Bridgeton had come the length
of the place where the lord Stratiimore and
otiiers were standing, he looked over his shoul-
der, and seeing FiribaTeii following him in
manner abore mentioned, be run up to my lord
Strathmore, who, and the rest of the company,
had still their backs tiimeil to the place from
whence Fiohaf en and Bridgeton were coming :
•nd that Bridgeton, upon his coming up to
6tralhmoTe,laid hold upon my ktid Siralhronre's
•word, and eadeafoiired lo pull it onl ; upon
wUeh my lord Sintliiiiore latniug aboul pushed
Bridgeton off, and in tbe mean time FlohaTa
made a pnsh with his swoni at Brii%pton, aw
at that instant he obaerred my lord ^atbmon
pnshing Bridgeton aside, and make a step to
wards Finha*en ; and obserred at aame IIm
Finhaven, going on with his piMh, to Msgm
liirwarO with the thrust upon my lord HtrSm
more ; and thereafter thu company west a]
through other, sn that the deponent could iM
see where the thrust landed : and »ery sooi
thereafter the deponent saw Mr. Thomas I^ol
with bis sword ra' Finharen's sword out of U
hand, which lighted at a good distance upa
the street: u|)On which FinbaTcn runoff, Mif
gering, towards the lady Auclilerbouse's ittf-
iug, and bad almost fallen upon the atreel |^
lbr« hegot inattiiegate ; and much abontthl
aame time the deponent aaw the earl of Stntb<
more fall down uiion the street, and al\erinidi
carried off, and that Thomas Adam and JuM
Binnie wet« (ho first that came to his assirt
ance. Deponed, That the kenoet was dasf
and dirty, and that the panuel itas deep in i^
but not treely covered : that when he»Tosa,Kl
face wBsalmost as Uack as his black coat ; ui
that while tbes* things past, the deponent wM
riding upon the side of the street, betwixt Ikl
gutter and the place where the earl of Stralb<
more and othera were standing ; and upon sM>
ing the b^iuuiog of this accident, he stoppri
his horses little, till ha saw naalmve-menliuDci
Couio scientiie palet. And this was the truth M
he should answer to God. John FEiiaitR.
And. Fleti^ueb.
David Barclay, lawful son to Dntid Bardif)
brewer in Forfar, solemnly sworn, purged, ^
amincd and interrogate. Deponed, That attbl
time and place libelled he saw Bridgeton put!
the pannel into a gutter, oud saw a serraal
raise bim outof the gutter : and when ihn pal-
nrlgotlo the street, he saw him draw his sword,
and go towards the rest of lljc company, an4
Bridgeton was beyond the earl of Stmthmor^
his brother and lord Rosehill, who were inter-
lerpoBed belwiiLt llie jiannel anit BridgeUa,
and did not see the panne] push with llM
sword, and saw a little after my lord Strait
more fall upon the street ; aod immedialdj
; aller that saw Mr. Thomas Lyon, with I
j naked aword, beat the psnnel's sword out el
his hand, and the psunel immediately nil
toward the lady Auchlerliouse's house, ad
got in at the dour. And deponed. That wbcl
Bridgeton thrust the pannel into the gutter, iIm
servant who lillud him up, aaid to Brid|;eton, n
some other serrant standing by, that be was nn-
civil, though lie was a gentleman : and iha'
what tbe deponent saw ami heard, as aforesaid
was betwixt eight and nine o'cloek of the eveO'
iug of the day tbresaid. Canto itienlitr palet
And this wa* the truth as he should answer ll
God. Di^ia BtocLnr.
y/t, Caldkkwood,
Eluahtth fimnte, anoine to Andrew Gray
bazter in Dnwlae, pelemnly sworn, pnrg<4
(xiuuncd ui iBleirroyale, daposvd, Tfauilii
W] Jbrae Murder of ihtEnrt of Strathmort. A-D. 1788. [M«
tiD uiile, tad my lonl Stntbmora bmd ulTanccd
liifciliiHliii a pnib to the panDfll, wFicreby n atep or hftlfa alep toward Fiohaven ; and tben
kdia ibc gutter, tnd irairoiaad out of it by tbey went all id kurowdtbroiigh other, and b«
ijkd not know what wa* duiofc amoDgtt them,
hit did H« hU mailer's snord ilruck out of bw
teiod place lifelled, ihe nvr John Lyon of
• * iM five a pnib to the panDfll, whereby
■ IM gutter, and iraa roiaed out of it by
it Iwi flUsifafflore'i wnaat ; and when he
Ctt Ifec ttrwi, law him drav bU anorJ, aod
ikJB Dttar BD oath, but did DOl know what
Atawkware: and then the deponent turned
kthdl,iad did not ate FiDha*eti puih with
: Ac twmL Catua Ntmli« pattt. And tliii
I TM the Inlh aa ahe ahould anawei to God :
'le could Dotwrile.
W. CtLDoatooo.
a JbrJt)p, Mnaut )o Mr. Robert Nairn,
'■fcraiaa to Nairn of Drurokilbo,
I MaalT *WOn>, purged, examined, and iuter-
NMt^taoBed, that at the time and place li-
I kb, be dU aee WiUiam Mu^lish, my lord
I IMwK^ aeiTast, take FinbaTen the pannel
! arfdw piUer,iTbeic the deponent fawbim
tl ad did aee FinhaTen dr«w hia aword after
iBont: aaddidbearoneoftheKentiemeD,
■iii|in tbe place where my lord si rath more
^Hmded, call out to Fin1iB*en, Stand off,
#}Hda1illleBpaeetfaereaflerhesaw the dc-
■Mdaait of Strathmoretakennp, Coniii ici-
atgfaltt. And tilie ia tbe truth ai bcBbouid
MiB IB God ; and deponed he could not
wAn W*. Pmssle.
Jma Barrie, lerranl to Jamea Carnegie of
^ImB, aolennly sworn, pui^;ed, examined,
M istampte, deponed, That at klie time and
|lMe kkeUed, the depnnent «(m hoUling hia
■Mar'a borara upon ihc slrrrls of Fcrfar, ntar
kihekdj Anrhierbousit's tud^ng: tliat he
Wacea weaaid earl ofStratbiuore, and other
cajaD]' witli him, ki aluiiir ilte Klrcet froiii
<fecuai iDdgioir, knil Ijis niiutcrand llrjitfjclua
IJkfii It a little distnucc ; beard tbcin coii-
■wnaf together, and iboiiKiit tliat Itrid^eliOi
MiiiJ ■imjI.c angry at Wii ma«lcr, a.tid dv-
■•Miliat he ahiiuld give him au answer;
Hmn will liear what liiv iiinklcr said, c.TcepI
Am wwdi. That be inteiidnl lo be of ihat re-
alitioo ttill : whcrriijion Ktidgcioo with his
tn hand*, puiheil his mnslcr into the giiUt.'r,
i> ibc nme lime exprL-ntng himself. Go liv
hma'i, and lt( thai man take liitii up tor whom
kehadu great a farimr. And (he dqwiii-iit
■Mg hit iDMter lytntr in the gutler, quit liii
Wk*, and came li) relici* him, but luund tlint
■j k(J Ijtrathmorc's scrranl had lidpcd liiin
MnWfure he cjmc.and then be did sec his
■Wtr draw Km anord, and go nrrlly fast fur-
inl. flaggcring, and Esying, riiis cannot bb
Mend; ibcii hiimaoteruimeup tulhecom-
Cj. and saw bim make a puili at I)riil[;eton ',
tLar klurr hi« muter came u]i to llicm, he
M we Brldtri'*'!" malic an allcmpt tn draw my
hrilkiathiDorc's iirord ; und as Ilridgcton tvad
9t^ lowatti ni_* lord .Siraihmore, be did six
Mjelnn louk "Tcr hitiibnulilcr lo Finliafcn,
MLnklatitbe had hecnlautjhinK. OWrnd,
hi vIwd his master madi' tlie pu^li, nii iH't^ire-
kaaiucd, be Mcmcd a* if lie had beun filling,
■(■w bim cloae upon lord Stralbm<>ie; bui
Uh lliii^ my iapl ittialhuiore kud put lliiJ^-
band by another swoid, and then did aee hia
— 'nr go down ta hii aister'a lodging. De-
yoned, that aj hia master was thrown upon the
back iu tbe gutter, and was covered near oref
the belly, and saw hia face all bespattered witk
Jirt, and aaw the mire run out of fail boot- tops
uabe went up theslreet ; and deponed hii mas-
ter at that time was very drunk. Being inter-
rogate further, deponed, Tliat hehasfreiioently
feet) his master drink, and propose the deceaaed
earl ofStralbmore's health at his table, and ihia
A short time before tbe unlacky accident liap-
pene«I. Deponed, that about a manlh before,
the [ate earl and hia master was tocher at
Bnmside't burial, and heard the Earl iDvite his
inasIertohiBiiouBe,Bnd beard bim aniwer, That
lie intended ihot very soon. Deponed, that bis
master rode with pistols that day, but deponed
there was not so much as a stone in tbem*
Deponed, that ai^tit or ten days before tbie un-
tnctcy accident, his master bid the deponent g*
m the taylor, and get his clothes ready, for be
intended aa soon aa he got bia chaiaa borne, to
go with his lady and make a Tiail to my lord
tttratbmore at Glaromis. Cavia leienti* patet.
And this is tbe truth at lie ahould answer t»
Ood. JiMEs Buuua.
W*. Pbikols.
Eluahth Vilant, lerraDl to Margaret Car-
D^c, relict of tlie deceost Air. Patrick Lyon,
of AuchlerhouEe, solemnly' sworn, purged, exa-
mintil and interrogate, (le|H)iif J, Thai, on the
<>ili I.!' Slay last, slie did sec my lord Slrath-
murc Btid t iiihaven in (be lady Auclilerhouse'c
lion^'e, anil did see nor hear iioihing pasa be-
tween them but what was kind and civil ; and
slie wa6 much of the time in tlio mom before
I)rid''eton came iu : but at\er he came in, abe
M-ns but ciimiug and going; and when mj
U-Iy railed for a glitsitof bruiidy, Iho de|)onent
brou[;ht it in, ami luv lady set it by, uid saw
nobody drink il, and I'hst mv lady tuM in tbe
cnmpBny, That Urid|(cton liad taki^n her by
ivriat, and that Khc bnd not been so ill usM
ly man, and complained uf pain. And
Ctiuia irientia pattt.
she shotild answer !•
de[Kined, that that allevi
Al>. CuCKDi;il!IE.
Isaifl Meik, servant to the before-named
and designee! jtlnii^aret Cnrnetlie, anlcinnly
sworn, mirged.examiucd and inlerrogale, de-
poned, Tliat in thi! evciiiui; on llie 9th of Miij
last, Finbavcn came up lo llie lady Auchlcr-
bouse's house, ami ibe donr being shut after
bim, she came ii|i srtvr into tbe said hou*e :
and she turning iiIhiuI upon sonic |)<>u pic knock'
ingat the door, and opniin:; the B:ime, there
CBmc in tiro nr three luthU'inen or (;eutlemrii
«iili drpwu sHords ; and I'inbaTen tieiug Ibta
147J 2 GEORGE II. Trial of James Carnegie,
till tbeir bodies were close together. Deponed, but she said n6, for it did appear to l
That Bridgeton is a good deal taller than my not want it, fur be was then ?ery dri
lord Strathmorewas: and that my lord Stratli- that Bridgeton took her the deponeo
more wore a fair wig, and Brid^eton wore a wrist, and squeezed it bard, and said
black one usually. Causa scientue valet. And be no difficulty to break it ; and di
ibis is truth as he shoald answer to God. same time, Bridgeton took Finharei
Tug. Cbichton. arm, and struck bis band down to '
And. Fletcher. and said, Will ye not agree to gire one
T^ r I Twr jj i L*- ^rkj daughters to Itosehill ? And Bridsfeto
Dr. John Wcddcrburn, physicuin m Dundee. ^^"^ ,f ,,^ ^^ ^ ^J-^, j
solemnly sworn, purcBd, examined and mterro- refuiedhimoneofhisdaughte;*,hewc
gate, depon^, T^atTie wsb ca"ed to wait on ^- ^j ^^^ thatshooE his hand <
the earl of Strathmore, when he reoeired the a«*i *i««rt«oj .h^ i^.^... l..^., ^^^ u^,
wound upon the 9tb of Ma^ last; and the de- broUierrtn^q^
ppnent saw him uert morniiy «riy ; w^^^^ And this Is the truth as she si
▼lewmg the wound, it appeared to the depo- ^^^^ ^^ ^^ Maroaret Cai
nent to have been given by a three-cornered ' *•> r>/^^.rnrtB^
sword, which had entered about three inches ^'^* i^ocKBURN
above the navel, and went out in the back on Dr. John Kinloch^ nhysician in Du
tb^ left-side, some inches from the back-bone, lemnly sworn, purgeo, examined am
and about two inches lower than where it had ffate, utftipra,aeponed,Tbatontbe9l
entered ; and the wound was to the deponent's last, after Lours's daughter's burial,
apprehension mortal ; and accordingly the earl nent was in clerk Dicluon's house in 1
of Strathmore died of that wound upon Saturday a room with the pannel, who asked t
night, about two davs after he had received it ; nent, if he would go into another rooi
and the deponent thereafter saw the defunct the earl of Strathmore was, to see his I
•pened, whereby it appeared, that the weapon and accordingly they went into the ro€
had passed through the caul, the gut colon, and the Earl was, and stayed there about
the plexus mesentericus. And deponed, that and drunk several bottles of wine toget
the defunct told him, that he bad an impres- during that time he saw nothing bi
sion, that the person who gave him the wound, civilities in tlie company, without the
had, by applying his belly to the pomel of the pearanoe of quarrels. Causa scient
tword, posned it forwlird upon him. Deponed, And this is the truth as he should <
thatBndgeton is of a mncn taller stature, than God. John Kinl
my lord Strathmore if as ; and that my lord W. Caldei
^thmore usually wore a fair wig, and David Denune, sadler, in Canoni
Bridgeton a black one. Cania scientuc patet, lemnly sworn, purged, examined am
And this is the truth as he should answer to jjate, ut supra, deponed. That, in U
God. John ^ edderburne. February, or beginning of March lasi
And. Fletcher. ceased Charles earl of Strathmore, j
Dr. CharUs FolheringAame, physician in *»aven the pannel, with another ire
Dundee, solemnly sworn, pui^ged, examined '^^^o™ ^l>« deponent did not know, car
and intenrugated, deponed conform to Thomas deponent's house, called for a dram, \
Criditon, the former witness, tn omnibus, deponent served them with himself:
Causa scUnt lit patet. And this is the truth as Eari first drunk to Finhaven and his fai
be should answer to God. **>en Finhaven drunk the eari of Stni
Cha. Fotheriwguamb. ^^i>^ and his family's; and at sev<
Ad. Cockburne. times, when the Eari was not present
^ , - . «^ , « ponent saw and beard Finhaven drin
Follows the Witneswss for the Pannel's Ex- gaid eari of Slmthmore's health. ]
culpation : h^ lias hail occasion often to see Finhi
Margaret Catnegie, lady Auchterbouse, so- ^ "» company with him. and observe
lemnly sworn, purged, examined and interro^ ^ay« to be of a good temper, and no
gate, ut supra, deponed, That on the afternoon «*'««>«» to quarrels. Causa saentta pat
Sf the 9Ui of May last, the earl of StraUimore, tbis is the truth as be should answt^r t
Bridgeton, and rinhaven, were in the depo- «t*^*? ^
Dent's bouse ; she observed no manner of dif- ^* ^-ald
lierencc betwixt the earl of Strathmore and Fin- David Ogihie, son to sir John Ogil<
haven; and that the pannel and the other com- verquharnty, solemnly sworn, piir(>
pany drunk my lady Strathmore's health twice mined and interrogate, ut supra, depot
over, and the pannel tossed up the glass ; be has bad frequent occasions uf beini
during that time Bridgeton was usin^ roii|fh ! pany with the pannel, and has oft- tin
expretsioos to the pannel» and was taking him ! aim testify 'his respect and regard foi
by the breast, and verv rude to biro ; and that ; earl of Strathmore, by naming and dr
viieD a|rlassof brandy was brought, she de- i his heahh; and particulariy did bear hii
•ired Bndgeton to take a dram» and be desuned | bis own house; in the month of Marcl
ll fboiild be giYCD to FmhafcOt ber hraUicr ; ■ list, when the deponent ^ae visiuog h
firtiie Murder nftht Earl of Sirathnure.
■r,<Jkcw him drink botb to the EifI'b
miik mmtco'a. Deponed, Thai for
ktiirfear ynra pAxt, he hui beeiiiu-
}j HMuina with tho psnurl, tind ob-
Munn to be of a goei am) peact)-
fff;tMlbechar«cterLea1wayi heirtl
ti Um couDliy, »u, That he was
M^leand good temper, and uo waja
■t. Caiua Kienlmpattt. Andthii
rt n be •faould aiuwer to God.
David Ooilvie.
Dl. EUKIKB.
A. D. 17S8. [!.W
aqd Mine liaen* of bu «ini to put on, at
leattthe coat was hi* own, vrhieb he helped to
pnt 00 him, and to wuh aod clean hit face.'
The deponent tpnke to him aaiiably to the oc-
casion of his villi, both in mperi tobndrunlc-
enoeu, *nd what wan tiubtiihed atHroad lie iiad
enminiUed upon the earl of Strathmore, by
giviafK him a wouad ; upon heariniC whereof,
and tbe depooeot further iaviny, Tliat he iiail
to bisgreataatiaftctionbetrdtbe earl of Strath-
more praj to God lo fo^ive fainri : upon lh«
the pannS fetl into tbo greateat diaorder, toH-
l> Jfarfj'ne, mbisler of the^pd at
mnly Kivorn, pur^d, ezmnined and
', at aipra, depooed, That he the
«vii)(! had (nme affair tndo with the
«rl of Strathmore, as one of the
ibla the deponent's jiariiih, on which
I dcpODCDt went lo trail of hU tord-
boiiM of Glaminit, hut had the mia-
aiaa him ; and upon his return,
ud of the pannri, ami spnke li> him
■, Ictlins bim how be had missed my ,
deaired that the jiannel would fall
npedieni to bring either his lard- I
nc from bim, lo meet with ihe rest
ora. Upou which the pannel ad-
leponeDt once more lo wait of bis
Biiuiiniia; and t<)r hisrecommeoda-
itrodoctioD, be would write a letter
I. and acquunt him in it, that he
«rer. Aciwrdingiy the pannel did
Her to the Earl to the foresaid pur-
I ht! delifercd lo the deponenl ; and
ibe deponent did igaia t(a to Glam-
lliat tune also had the misfortune to
irdibip; upon which he ihe depo-
tfd the letter to one Mr. Greenhill,
servant ; and the meeting of the
<ldin|T upon tbe Wednei^dny there-
said Mr. Greenhill came irom his
ind ntleniled Ihe meelinfr : and de-
tt the writing of the foresaid lutler,
rin^ of it, was about the end of
hc;;inDiD^ of April last. Deponed,
Irpooent has tor these ihree years
ntiinalely acquaint with the pannel ;
: the wbule CDuise of his acqiiainl-
bserTed him always to be regular in
d of a [leaceahlc temper and disposi-
h i<i Ihd character he bears in the
Cuuu icicuftf palel. And Ibis is
a be atioald answer to God.
John Martine.
D*. Ekskinl.
«f MaztLtll, ^ ,
solemnly sworn, purgjcd, examined
tgate, ut tupra, deponed, Thai «oon
sriofStralbmore received his wound,
rat waited of bim, aod from him be
iIm prison and visited the pannel,
fiMwl in (freat disorder, and under
— iuna of drunkenness, his cluaihi
', and hi) face
...jle, and hanging his head downwards, cried
out, Good God I liave 1 woimded the earl of
Strathmore, a person for nhuiD I bad ^at
kindness, and against whom I had no deai^i 7
CoHfa tdenl'ut patet. Aud this ti ibe tnilh ■•
be should answer to God.
Ja. HaxwuxL.
Da. Ebskikb.
The Lords Jnstice Clerk and Coram isaioaerB
of Justiciaiy, ordaioed the Asuseto iodnae in-
stantly, and return their Verdict, in Ibia plsoe,
against tO' morrow at twelve o'clock, aod the
baill fifteen to be then present, «ach under tbtt
pain of law, and tbe pannel to ha carried back
to prison.
CoBU JusTicuBu, 8. D. N. Be^ lenla id
novo Sessioiua Domo Burgi do Edin-
burgh, tertio Die Hessis Augnsti, Uilto-
simoseptingenie^mo rigeaimo oetaro, per
honoiabiles Viros Adainum Coddiunieda
Urmistuun, Justiciarium Clericum ; Do-
minum Gulielroum Calderwood de Pol-
touQ, Magistrum Davidem Erskine <!«
Dun, Dominum Gualierum PrioKle de
Newhall, et Alagistrum Andreani FTctcher
de MiltouD, CnmmiiisiunBrias Justiciaria
diet. 8. D. N. Regis.
Curia legitime affirinula.
Jamet Carnegie, of Finhaven, pannel,
Indicted and accused, as in all tbe former
sederuuts.
The tbregoiog peruins who passeil upon the
Assize of the abive nannel, returned their Ver-
dict in presence of the said lords, and whereof'
the tenor follows:
Edinburgh, Ihe Bid of' Auguit, 1798.
The shore Assize haling inclosed, did chooH
sir Kniiert Dickson uf Inveresk l» be their
of the gospel chanccllur, and George Halibiirtoo of Fordel
' lobe their clerk; Ami baring considered lb*
in'liclmeiit pursurd at the inMauce nf Soranna,
cuunteksot Strathmore, anil Mr. Jameg Lyon,
brolher-german and iienrest of kin l<i the de-
ceased Charled earl of Strathmore, with con-
courst^, and at thu inttatire of Duncan Forbes,
FM). his majesty's ailrocote, for his highnnB*a
' ilerest, agaiutt Jaui«i Carnegie of FiuhaveR,
vith dirt; the deponent helped him pannel; the lords juslice-clerk and
r hia ckitbes, aud seat for a
siuneti of juMtdary tbcir iuleriocutor tbtr*-
151]
2 GEORGE II.
upon, vith the wHnetMs' depontioni aiUncfd
twT prOfin^ thereof; with tbe witneMM' dcpo-
Biljocu Mliluced for the pannel'i exculpation :
Tbey, bv plurality of roicei, fiad tbe pannel
Not Guilty. Id witoeM whereof ttiir pmenta
are subacrihed by oor naiil chancellor and okrk,
iu our namea, place, day, munlb anil year uf
God above- written.
" Ro. nirKsiN, Chancellnr.
'• (JEO. ll.AUDiiBTON, Clerk."
' TbeLordaJualice-ClerkandCommiwioners
of Juaddtry, faaTiD^ cousidered the foregoing
Verdict of Amize relnrned against Jsmes Car-
upgje, of Finhareo, pannel: They a&suilzied,
and hereby HEioilzie nim simpliciter, and dis-
Diiued, and hereby dismiis him from itie bar.
Ad, Cockbubne.
AaSTBACT OF SOM£ AcTt OF PaRLIAMBNT'
IN THB VK«Y Words op the Statutes
TRSMSELVBS, REFKKRSD TO IN THB
rOREGOING AruUMXHTS.
Jaim* 1, pari. 3, act 51, intitled, <' Of
fbrethonirhl FetoBy and chaud metla ;" ala-
tutec, " That aa loon a* any camplaJDt ii made
to Justices, ■heriffs, baillies. Sec. they iliall en-
quire diligently (i.e.) without onie laTuur, gif
Uiadeed waa done upon foretbonglit fetony,
or throw aiidden chaud mella : and 0{ it be
fomd ftirethotight felooy— the life and goods
oftbetreipaaaerlobein thekiug's will:— and
gif the treipaa* be dime of 8u<ldeu efiaud mella,
ibe parly ikaitbed shall follow, and the party
IranagreiMir defend, stler tbe coune of the old
lawa of the realm."
ilamcE 1,-pnrl. 6, act 05, intitled, "The
Uanslayer luld be punued until be be put furtb
of the Realni, or brought again to the PJace of
theHlauchter;" ((he act appointing (he ine-
Ihod of pursuit^ manslayers) statutes, " That
quhaireTer he hspjienia to be takin, that achi-
reSe, aluart, or bailie of the regality, sail send
bim to the schireSe of (he nixt schirefrdoin, the
qnbilk sail receire him, und send him (0 the
Dint suhirefTc, and swutimrth from schirefTe to
Mhireife, quhill be be put to the achirefle of the
pobire where the deede was done, and (here
■all tbe luw be miiiistred (o (be party ; and git
it be fbre(hDUght lelouy, he sail die iherefnre."
Jumes 1, pari. G, act 05, iuliiled, « Of In-
quisition of forethought Felony lo lie taken by
an Awice;"i(statutea, "That (he officiate (i.e.
ihejurlKi-s ordinary) sliali give them tlie know-
ledf^ ul an ashize, wlietlivr it be li]re( bought
ftlony, or sildJcnly duuc: and gif i( be sud-
denly dune, deruain iliem as (he law (read of
belure;— and gif it he forethought felony, —
iteuiaiD Ihein as law will."
Jamea 3, pari. 5, act 35, intitled, " Of
Slauchler, or foretJiought Felony, of Sod-
dutje, and Flying to Girili." Item, " Because
of tbe eschewing of great ilaueliter quhich Inm
baw tigtat caiumauDRiaMXtt the kia^'a Ueg**!
Trial of JmtKM Carnegie, [ISf
DOweof late, baith of foretho light felony, mat
of auddantie : and hecausa monie peraoos co^
Riit tUuch(er upon foretbeoght felaoy, in tmota'
they sail lie deiiPDded throw the inamunilw af
(he halie kirk and girth, and paMia and rrrmsiaii
insanctiiaripa; it u tbonght expedient ia tbi»
prBKul psrliameot tor (he stanching of ibo
Slid slouchten in time coming, quhaiterv
slaiicbter is committed on forethought felenf,'
and the commiiter of the said sUuchter po^w
und puUii kim in girth, for the safiie of bii
|>erson, the schireSe sail come to the ordinoTi
III places ^ubair he lie* under hia jiiriadidiia,
and in places exempt to the lords maintentf
the girth, and let them wit, that sick a ■■■
has coniinitled sick a crime, on fbrelhoi|bt
felony, "lanijuam insidiutor etpcrindustriim,"
for qubilk the law grants nut, nor learei oat
sick persona In joyis the immunities of tha
kirk. An.l the schirafle sail require tbe or-
dinar to let a knowledge be taken be an SMua
on 15 dayi, quhidder it be forethought felony,
or not : anrl if it be tbundeo foretliuught felony,
to be puniKhfd after the king's laws : and ifit
be fuundej) suddantie, to be restorid agais Ml
the freedome and imniuaiiy of balie kirkai^
James 4, pari. S, act 18, intitled, " AdmI
Manslayeritakeu or fugitive ;"slatuiea,"'lW
where any happens to he slain within (be reah%''
tbe mantlayer shall be puraued (in a certlW
manner), and wherever be happena to be over^'
lane, that tbe ichirelle tall incontinent ant
him Iu (he nixl ichireiTe, and to forth, qoUl
he be put to tbe ichirelfe of the scfaire quMM
the deed waa done ; and (here sail justice hi
iiicoD(inent dune. And gif it be furetbonglt
felony, to die therefore."
Jamea 5, pari. 4, act 23, intitled, ■' no
Haisters of the Gii1h suld make depute*, qoko
suld deliver Malefacture*, thai may not biwb
(he priviledgc thertuf ;" ststiiies, " That tlMy
should be huldrn in all time comeing, to da*
liver all committera of sUuchlir upon foro>
tliaught felony, that (lira to trjnb, and nlbcM
Iresiiai>seni that breaks the same, and may oM
biuik tbe privileilge thereof, conform to ibl
. common law sud (be act of parliament ma^
thereupon of before, to the king's official^
atktiod and desireaod tliero tounderlythelaw.**
Follow* the intire act of Charles 3, pari. 1,
I chap. 23, intitled, " Conreming the Wt-
i vetal Degreea of caiual Homicide."
" Our sovereign lord, nitli advice and con-
i sentof ilie estates of this pres'-ut parliament,
I for reniuviug uf all quektinn and doubt that inay
' arise heraatter in criminal pitrsuila for slaogh-
\ ter ; Btatulei and ordains, Tliot the rasca i(
I homicide after liillowiDg, via. casual 1 iiifc.
liomicide in lawful defence, and iiominido
conmiltad upon Ihievet and robbers bra>kia|f
bouaaa in the night ; or in case of 1 in J
(be liffie of maatprtul doficdation, or in t ho p
orimea, w of nek who
dedared rebela br coaiBl
rho asaiat owl Miad DM
m
Cote of Edmund Curil.
A. D. 1727.
[154
■Wtacrf nuftcrful depredators by armi, and
fe| firce 0|ipoae ibe piinuit and appreheadio^
tfihiB, wluch abalt happen to tali out in time
mmiai^t aor anv of them, shall not be punished
hf daili ; and tbat uotwithstandinfl^ of any Uws
« arts of parliament, or any practie made
himfais^ or observed in punishing of slaugh-
tv: h«thil the BWDslajer, in any of the cases
asaoilaied from any criminal pur-
' aninst him for his life, for the
r, before any jud|fe criminal with-
JiiifHsginna, Providing always, That in
AfCHtsf hooaicide casual, and of homicide
lotwithstanding that the slayer is
by this act free from capital pmsishment ; yet
it shall be leisum to the criminal judge, with
advice of the council, to fine in his means,
to the use of the dehinct*s wife and baimf, or
nearest of kin, or to imprison him. And hb
majesty, with advice foresaid declares, that all
decisions given coiiibrm to this act, since the
13th of February, 1649 years, shall be as suffi-
cient to secure all parties interested, as if thia
present act had lieen of that date : and thataH
cases to be deciiled by any judges of this king-
dom, in relation to casual homicide in defence^
committed at any time heretofore, shall be de-
cided as is above expressed."
470. The Case of Ed if und Curll,* Bookseller, in the KingVBench,
for publishing a Libel : 1 George II. a. d. 17^7.
Mich. Term. 1 Geo. 3.
L's Rex v. Eomuno Curll. f
Jn6BllATION exhibited by the AttomPT
against the Defendant, Edmund Curll,
Itie '* ezistens homo iniquns et scele-
M oeqiiiter machinans et intendens bonus
■Mi snfaditonim hujus regni corrumperc et
dMsl iMi|nitiani inducere, quendam tnrpem,
bpMi et obscoeoum libellnni, intitulat Venus
is a Ckyster, or. The Nun in her Smock, im-
■r^niter impressit ct publicavit, ac impri-
■t poUjcari causaTit," (sett I u^ forth tlie
I lewd uassageft) **in malum exem-
,** &c. atko of this the defendant was found
Trinity Torm last, it was moved in
ivfjodgineothy Mr. Marsh, that huwever
' ml may lie punishable fui* this in the
Conrt as an offence *' contra honos
vet it cannot be a libel for which he is
in the Tcmi)oral Court. Libeliu^
I a diminutiTe of the won! liber ^ and it is /i-
Je/Ztfi from its bein<7 a book, and not from the
■ttirrofits contents, in the Case De Libel-
b famous, my lord Coke says, that it must be
l^auHC the iiublic, or some pnvatc person, to be
a bbel, ami 1 do not remember ever to have
heud this opinion contradioted. Whatever
itads to corrupt the morals of the people, ousfht
ti* be censured in the Spiritual Court, to which
properly all such causes belong. What their
pcuerediDgs are I am a stranjjrer to : But for
■e u insufficient to say, I do not find any case,
■herein they were ever prohibited in such a
uDse. In the reign of king Charles 2, there
* Probably the iiotorions bookxeMcr. As to
«b<Mn,see the Duaciad. See, al^, vol. 1>,
t Nlraiige*s Reports, vol, Q, p. 7^3. See 1
IMi. t9. Nee Annett's Case, 1 niackst. 395,
%a^ Ecclesiastical Li*.v, tii. Prolaiiencss,
flialogiw 3, p. 113. See, a1<*^». Kast'tf
ef the Crown, c. 1, § I, and WUkes^s
fm publishipg the Kssay un Womuu.
was a filthy run of obscene writings, for which
we meet with no prosecution in tiie Temporal
Courts ; and since these were things not fit to
go unpunished, it is to be supposed that my lords
the bishops animadverted upon them in theii;
courts. In the case of the Queen o. R«ul,
6 Ann. B. R. there was an information for a
liltel in writini; an obscene book, called. The
Fifteen Pluuues of a Maidenhead ; and alW
conviction, it was moved in arrest of judgment,
rhat this v«as ni»t punishabli: in the Temporal
Co'Tts; and (he opinion of shief justice Holt
was so striiiig w'\i\\ the oltjection, tliat the pro-
secutor never tiiiiught fit to stir it again.
Attotnfjf General coutra. I do not observe it
is pretemlcil ihere is any other way of punibhing
the (i«:fen(iaiii : for if the S|)iritual Court had
done It, instances miglit be given ; and it is no
argument to say, we meet with no prohibitions :
such a way of argument- would constnie ihem
into all sorts of jiirisijictions. What I insist
u|M>n is, that this is an offence at common law,
as it tends to corrupt the morals of the king's
subjects, and is against the peace of the king.
Peace includes {2;ood onler and govern tneot,
and that peace may be broken in many in-
stances without an actual force. 1. If it be
an act against the coiKtitution or civil govern*
mem. 2. If it be against religion. And, 3.
If against morality.
1. Under the H'stliead, fall all the cases of
seditious words or uriiiiigs, 2 Roll. Abr. pi. S ;
Vent. *61\\Z Kelile ^*4li and the Case of the
Quern v. Bedford, Mich. \1 Ann. whose trea-
tise of Hereditary Ri^ht was held to be a libel,
though it contained no reflection upon any part
of the government.
2. It is a libel, if it reflects upon religion,,
that great basis of civil government and liberty ;
and it may be both a s|)iritual and temporal of-
fence, Cro. Jac. 4'21 ; 2 Koll. Abr. 78, pi. 2 ;
1 Venl. 293. 3 Keble (507, 021. In Tremayne's
Entries, ri26. there is v. sentence to have a
priper fixed upon the defendant's head, iiittmat-
in;^, tIi:U he had uiiered blasplieraous words,
tending to the subversion of government.
135J
1 GEORGE 11.
There U one Hall a
Pucb. 10 Adu. UeKini s. Clcndon, tberc
special rei'Jict on a libel abuul the Trinity, ind
it wu Dot made a doiihl of in that case.
S> As to tnonUilj. Ueatroying the peace nf
the gOTemiuent ; Tur j^ernracDt ii du more
than public order, wbich is muulil]'. My
lordchierjuiticeHolt uiieil lossy, Christianity
if pan dI' the lair: Andnbynol morality too?
I do not iDsiit tbat ererj iinioDral act ii ia-
tlictaUe, ancb as telliog a lie, or Ibe like : Bat
if ilisdeatriicliveof morality in eeoenl; if it
4oet, M may, affect all tbeltinga sabjectf, it
then is an ofience of a |juhlic nature. And
upon this distinction it is, that particular acttot'
fornication are not nunisbaUle m the Tem|>onl
Courla, and bsirdy houses are. In sir Charles
tSedley'a caic* it tva* said, that this eourti*
Case lifEdmuud Curtl,
the eurtos tnorum of the kins'
Hid. 16il, and U|H)n this fbundatit
been many prosecutioDS against t
obscene plays, Ihonjfh they liari
enough <o get the proceedings
juilgraent, Treniayne'a Enlri^, i
315. Lord Grey's Case, [Vol.
this Co1Ic<:lion.]— Mich. 10 Wil
Hill, the defendant nas iudiete
some obsceue poems of my lord
tending to the corruption of ;
which he nent abroad, and w
which he wouiil not havo done,
bad tbonght it no libel. The Sj
punish only iierBonal spiritual i
words ; if it is reduced to writiii|
poral offence, Salk. 553; ftlo. tiS;
iiishable as a libel. Uy lord Col
De Libeilis famosis, had nothin
acandalouB, defamatory libels.
naoD law lor aerenl mitdenieuiora againit the
kbff'a Mac«,and which vera to the great scandal
of Chmtiaiiity ; and the cattle fas, for tbat he
•hemd his nidied body in a balcony in Corent
Garden to a great multitude of people, and
there did sach things, and apcke such words,
ju. mentioning some particaUrs of hii misbe-
faarionr, as throwing davo bottles (pissed in)
vi el armit among the people^ Keble's Iteporta,
lot. 1, f. SSO. Fortescue's Reports, 99, 100.
And thii indictment was openly read to him in
court; and thejuilices told him, that notwilh-
Handing there was not then any Star-chamber,
yet they would hare him know, tbat tbe Coart
iif King's- bench was the aulot morunt of all
the king's subjects; and that it was then high
time to punish such profane actions, commilled
against all modesty, wbich were as frequent,
as if not only Cnristianity, but morality also
had been neglected. Alter be had been kept
in court by recognizance from Trinity term
to the end of MichaelniBS term, the Court
required him to tuke his trial at bar : but
being advised, he sulinitied himself to the
Court, and confesaed the indictment, 15 Car.
9, 1643. Tbe Micliadjnas term fullowiiig, the
Court considered what judgment to give; and
inasmuch as he was a gentleman of a very an-
cient family (in Kent,] and his estate incum~
bered, (not intending bis tuin, but his reforma-
tion] they fined him only 3,000 marks, and tn
be imprisoned a week without bail, and to be of
guodbebariour for three years, Sid. lliti, ul. 29.
TtSawit nf thn (.aai ■> fid anrl I in Kirnii-,-
See the Case of Wilkes, in this Collection,
flUl.
Wood (Athence p. 1 100) reporla, with evident
incorrcctueu hnwerer, tbe case of sir Charles
Sedley, as follows :
"In the montli of June, liiGS, this our au-
titer, sir Charles Bnlley, Charles lotil Buck-
fctntt (aRerwanls earl nf Miihllesex)" [more
eommonly mentioned by his title of t«rl of
Dorset! " air Thomas Ode, 4
cook's liouse at the aign of the <
street, i^ear Cnvent Garden, will
of Westminster,and being inflaDi<
liquors, they went into the baico
1o that houae, and putting down i
they eKCremeotixed in the street
done, Sedley atriiiped bimselt' na
eloquence preached blaspliemy 1
whereupon a riot being raised, (h
came very clamorous, and wouli
tbe door next the street open ; hi
dered, the preacher and his ci
pelted into their room, and the
longing thereunto were broken
being soon spread abroad, especii
natical party, wbo aggravated it i
by making II the most scandaloil
tnre, and nothing more reproach
than that ; the said company Ve
to the court of Justice in Wet
where being inilicted of a riot b
bert Hyde, lord chief justice ot
Pleas were nil fined, sir Charle
live bunilri^d pounds."
Aflcr relattnif the insolent and i
haviour of Sedley in court, Wt
thus:
" The day fur payment being
Charles desired Mr. Henry K
another gentleman, to apply the
majestv to get it off; but insteai
l>eggea tbe said sum of his majes
not abate sir Charles twn-|>ence o
" Mark," exclaims Johnson in hh
let, *■ tbe friendship of the dissoh
Sir John KereHby in his Memoi
7} indicates that at that period
highest rank and station were ii
begging from tl)« crown the estat
accused of forfeitable offences in i
their conviction : and from his ac
likely, that false a<
obtaining sudi futfeiiorca. The
i5n
forpublithittg a Lib^.
A. D. 17C'7.
[I5S
ahajrutokuknisatecbnicol word; id this sayinc* Why doirt yon go to the Spiritual
OS il mj itUMi R8 an obscene little book. Court? Which was ^^ing a false reason lor
iliiittiMcawofRrad,* there was no judg- that sudden opinion : Now it ap^iears there ia
, htt il went off upon the chief justice's do instance of the spiritual court's intermed-
" Who b libelled here ? This may be said to be
a temptation to incontinence ; and therefore
why not punishable in the ecclesiastical court f
This tends to bawdry, as well as soliciting qf
chastity ; but they do it only to get money."
Lord Forteseue, at the end of his Report,
mentions this case of the King and Curil,
'^ which" he says " was an indictment for
printing and publishing a libel, called, The
Nun in her Smock ; which contained several
bawdy expressions, but did contain no libel
against any person whatsoever : the Court gaTt
judgment against the defendant, but contrarr
to my opinion ; and I quoted this case. And,
indeed, 1 ihought it rather to be published, on
purpose to expose the Romish priests, the fa-
ther confessors, and Popish religion."
But since this case of the King v. Curll, the
Court of Kind's -bench without iiesitation ex-
ercises jurisdiction over such publications, and
over other oflences contra bonos mora^ which
are not attended with breach of the peace.
Upon an attempt (8 Geo. 8,) to move in ar-
rest of judgment in the case of Woolston, who
was oonvicteil on four informations, for his
blasphemous discourses on the miracles of our
Saviour, the Court ilcclared they would not
suffer it to be debated, whether to write against
Christianity in general, was not an offence pu-
nishable io the TemjKiral courts at common
law : it having been settled so to be, in Taylor's
case, 1 Vent« 29^; 3 Keb. 607, 621; and in
the case of the King??. Hall (see 1 Str. 416, [419,
cd. of 1781-2.]) They desired it might be
taken notice of, that they laid their stress upon
the word * general,' and did not intend to in-
clude disputes between learned men, upon par-
ticular controverted points. 2 Str. 834, [8v^0
ed. of 1781 -a]
In the case of the King against sir Francis
Blake Delaval, and others, which was a prose-
cution for a conf!piracy to transfer a female in -
font apprentice for the purpose of prostitutioni
lord MuiisiWId said : ** 1 remember a cause in
the Court of Chancery, wherein it appeared,
that a man had formerly [ipi. formally] as-
signed his wife over to another man : and lord
llardw icke directed a prosecution for that trans*
action, as lieing notoriously and grossly against
public decency and good manners. And so is
the present case. — ** It is true, that many of-
fences of the incontinent kind full properlj
under .the jurisdiction of the ecclesiastical court,
and are ap|iroprinttd to it. Hut if you except
those appropriated cases, this court [H. R.]
is the cusfoa morum of the people, and has the
superintendcncy of offences contra Ifonus mores :
and upon this ground both sir Charles Sedtry
and Curll, who had been guilty of offencr's
against good manners, were prosecuted here.'
At mmk of Soodind, bear ample testimony
ti iht fRiaknoe of practices of this sort in
tet kiipH, during the reigns of Charles the
Jlf jM. 21 Jac cap. 3, it is declared and
' Iht all commissions, grants, &c.
KMde or granted, of any grant or
• M jf *^ l*n€fit» profit or commodity, of
mf Mtee, penalty or sum of money,' that
*""-'^ te Ai bv any statute before judg-
!<V^ bio, are altogether contrary to
^ thb realm, in no wise to be put in
>• What was said by the judges in
iuMrfpnal statutes (Hil. 8 Jac. 7 Co.
VfHI mdily be believed ; that in their ex-
|9M> Mdi grants made the more violent
y "j* ptactcdiag against the subject, to
S^f^ ^ jmtice, and offence of many.
2"^'"y* lord Coke (3 Inst. 187,) < such
VnaeoKoders worthy of severe punish-
IB.-* ad to " these hunters for blood" he
mm Ijm esdamation of 31icah, •' Thev all
Mnil Ar blood, and every man huntetb his
Wbtidaih." [Our translation says, with a
'ihftecBse of the Queen against Read, 11
Ai Itf, h was held that a crime that shakes
l%bi (see l Hawk. ch. fi,) as profaoencss
■ At itage> [u to this, see stat. 3 Jac. 1, c.
a fa. is indictable ; but writinjgf an obscene
■ aoi indictable ; but punishable only in
kipnual court.
Kiaie of the Queen v. Read (Fortesc. 98,)
Misadictment for printing: a lascivious and
ftnBittel, enUtlpd, «« The Fifteen Plagues of
AHfcibead." The defendant was tried be-
kM chief justice Holt, and convicted : and
n notion io arrest of judgment, it appears,
■ jo'l^^roent was given by the whole court
ribedetefjditnt. And by Holt, C. J. '* There
iceeMa&tical courts: why may notth'uibe
■nhcd there 'f If we have no precedent we
loot punish. Shew me any precedent.''
«rU, J^ *• This is for printing bawdy stuff, ,
It reflects on no person : and a libf I utu:;t ha I
unit some particular pei'son or iic-rsons, or
kiofl die government. It is stuff not fit to
Bratjuoed publicly. If there is no remedy
the Spiritual court, it dues not follow there
M b« a remedy here. There is no law to
aiih it : I wiih there were ; but we cannot
^ law. It indeed tends to the corruption
|Md manners, but that is not sufficient for us
piMh. As to the case of sir Charles Setllcy,
■V was something more in that case than
■■ii^ bis naked body in the balcony ; lor
■ tMe was tfvod vi et arm'u he pisseil down '
a Ike people's heads." And he cited lady
ek's case, which was in llie Star-cham-
<^*bcre tfae^ " quashed the indictment be-
"^ ■" lor Batters of bawdry." Holt.
159] 1 GEORGE U. Case of Edmund CurlL
dliogr, wliere it it reduced to writings, or in Sedlej's'caie, who only expowd bimtdf
print. people then present, [nalced,] who might
Chief Justice Roymond. I think this is a whether they would look upon him ot
case of Tery great consequence ; tliough, if it whereas this book goes all over the kin(
was not for the case of tlie Queen v. Read, 1 Drunkenness and swearing were panishi
should make no great difficulty in it Cer- tlie Spiritual Court, before the Acts '
tainly the Spiritual Court has nothing to do made them temporal ofieoces, and in '
with it, if in writing: And if it reflects on re- the jurisdiction of the Spiritual Court is \
ligioo, virtue, or morality ; if it teodsto disturb Probyn^ J. inclined this to be punii
the civil order of societv, I tliink it tB a tcm- at common law, as an otfeoce against the |
poral ofience. I do not think Ubellus is always intending to weaken the bonds of civil so
to be taken as a technical word. Would not virtue, and morality.
Trover lie *« de quodam libello" iutitulat the «„. .. . .,_ ^ ^^ - ^^^^. ^«.^„^
Fartetcue^ J. 1 own this is a great of
^^uT^aI Z^Z^iZiSuZZr^ ^^^ Generd and my^lf. 'But Curft not
irression. At common law, druokenness, or :^^ «*.„« j^i ^^ • .:„ » <.^« : *. j^i.
Kg and .wearing. we4 not puniahabte, '^^f^f^^^Z^Zli ^^^^^
andyet IdonotftodtheSpiri.«a| Coort look LlS? SaSTfcm bU^o^^ :Su5
nouce of ihem. Tbui .. but a general iohcita. ^^ .^^ ^j ^ ^
t.on of chaaUty, and not indictable. L*dyPur. « two or three aaya. they ga»e h a« then
beck's case was for procnriDir men and women _;_,-.^ „„:„:»„ 'AL, .kL 1.. . 71— Zl
to meet at her bous^. and blld not indictable. S™*'" X ^.^H ft J« „Ui^ ?K^J^
icular facte to make feu-^^I^' 'f^^P^.i*-'^
MMIIIIV40 n, m WDicn were is noiuinir in ins _■ , , ,■ „ ,k«™ ^.. »» n^...:.. .« *-ii.
*« i-i7i • ^ L • I -J » went upon, tnere was no occasion to talk I
case. A libel IB a technical word at common n^„.,,riJ, ^!c *il i- i.
i._ . —J I _..^ ._- (k^ ^.. «f >k<. rk..^« Court's being cenior morum of the king'
•^ • Bij!JS5.r.i. L^, .Wo^r« i^^- They said, if Read's case was to!
Charts SedleySi^cnhere was a for«^ of tt? ' aSN^^S S.S wi^'iSS
tbrowinc out boldes upon the people's beads. ^ ;„ jg^ ^^^^^^y^ ^ ^^ ^^„ j,^^^
HtffnoldSy J. It is much to be lamented,
if this is not punishable : 1 agree there may be This Edmund Curlt stood in the ptik
many instances, where acts of immorality are Charing- Cross, but was not pelted, or usi
of spiritual cognizance only ; but then those for being an artful, cunuiog (though w;
are particular acts, where the prosecution is fellow, he had contrivinl to have printed |
pro salute anima of the offender, and not where dispersed all about Charing- Cross, teltin
they are of a general immoral tendency ; which people, lie siood there for vindicating Um
1 take to be a reasonable distinction. Read's mory uf queen Anne ; which had such i
case is indeed a case in point : but I confess V feet on the mob, that it would have
should not have been of that opinion. Libelius dangerous even to have spoken a.
docs not ex vi terminU import defamation, but him : and when lie was taken down out
is to be governed by the epithet, which is added pillory, the mob carried him off, as it vr
to it. This is suituy worse than sir Charles triumph, to a neighbouring tavern.
1
Trial if WmamHaUt.
A. D. 1728.
[let
I. The Trial of William Hal^s, for forging* a Promissory
Note for 6,400/. in the Name of Thomas Gibson, esq. and
PartnerSit ^^^ f^r publishing the same as a true one, knowing
it to be false and counterfeit, at the Session of the Peace,
ad Oyer and Terminer, for the City of London, held at the
Old Bailey, before Mr. Justice Page, J and Mr. Baron Carter:
SG£OUG£ II. A. D. 1728.
December 9, 1728.
ftw. OyEZ ! Oye« ! Oyez ! All manner
vnin,lhitbaTe any thing to do at this
••rf Oyer and Terminer, holden for the
ft«LBBd<m,Bnd eaol-dclnery of Ncwgrate,
n>ftrlhf!city of London, and county of
dnwnear, and giye your attend -
^n\ Yon good mm of the ciry of
^--^MBmoDed to appear here thisdoj',
•J "e trill between our aovereign lord the
Wl vd William Hales, answer to your
piia and peril that shall coiue
Scynoari Samael Cranmer, &c.
toSSiUl^"^^*- William Hales, look
f?|Meagw. Hamnel Cranmnr
•9**9»«- My loni, I have a paper deli-
There are three worthy persons
I) We desire may be set aside.
'^Hf' Yoii know what the law isjl : if
r • ""»*)• consent they should he with-
■■^ W well.
■^Icyflcj. Wc know there Are enou^'i,
jtt jMrr. Richard Knollys.
g- S^V"*"- He is related to Mr. Gibson.
wal^«''ifccr. Prove it.
■jwa C«rkr. Pray, how is Mr. Gibson
fcrj. Diinili n jg for ^ notg ^p j^Ir, ^jij,.
kiaHLf^^i' ' ^^^^^ recommend it to Mr.
*womey. IwpuH have this trial without any
■hi ^.^"**V*^- ^^- ^^' ^^' "» 7' ^- J «««.
"^uw iwowing cases relative to the traiis-
■^ **)'<i»0«ve rise to tliis Trial.
«lr J %!."'• **»• ^^^^ »n short hand hv
• Z. V ■ ^J^^'-tWner Edition, "
JAM^'.r'*"'- "'"'t. vol.7, p. 691; and
2^^*^ Lues cf Pope, and of Havajje, as
colour of unfairness whatsoever ; and as Mr\
Gibson is concerned, if he be really a- kin, I
would advise Mr. Attorney to v\aive him.
Attomcif General^ (sir Philip Yorke.) My
lord, 1 am sure it is our desire that this trial
should proceed with all the fairness iraaj^ina*
ble ; therefore, without entering into the ques*
tion how fur Mr. Gihsou is concerned, or, if h«
is, what consequence thai may have, 1 waive
this gentleman.
Then the twelve Jnrors, who were sworn,
were counted, and their names were as fol-
low, viz.
Samuel Cranmer,
William Howard,
Thomas Swayne,
Thomas Port,
Ralph KnoY,
Cornelius Alason,
. A. 11 \u:^ ?r' *"**» »o T^o"™ ''^ncs, (book R,
i 1^ i«l!'T'' *^fy a^"^ niy 'Of** justice
^iS^ ^^"^ ^^^ ^^^^"^ ^'"^^'" ^"■
^,*ii^'*e the celebrated * Letter con-
>jy*^^Warrants, Seizure of Papers,'
• ■*■ aicribed to lord chancollf»r
to the first lord Asliburton.
John Pott,
RichanI Chauncy,
Jame^ Coulter,
Harvey S|)ragge,
Joseph Jackson,
Robert Knaplock.
CL of Arr. Crier, make proclacnatioo.
Crier. If any one can inform, &c.
ChofArr. opened the Indictment, which is
as follows, viz.
** London, ». Juratori^ pro Domino Rega
super sacranientum suuui pra>sentant, quod
Willielmus Hales, nu|K*r de London, Aurifa-
bcr, Anglic^ Goldtmith^ existens persona ma-
lorum nomiuis et famiB, ac ronversationis in*
lionestflc, ac injust^ et fraudulentf-r niachinans
et intendens quendam Tlioniam Gibson, uec-
non quosdam Johaunem Jacob et Rohiertum
Jaconib, participes ejuKdcm ThomsB Gibson,
ac diversos alios dicti homini Reyfis nunc ligeos
ct suliditos, de iiisfrnis deuariorum summis
fraudulenter et iniqub decipere et def'niudere,
septimo die Septeuibris, anno regni Domini
Georp^ii Secundi, nunc Rep^ig Matj^i.&e Britan-
niee, &c. sccundo, apud Loudon pnedict, scili-
cet, in nnrochia Ss^nrti Dunstani in Occident',
in waniri de Farringdon extra, vi et nriiiis, 6cc.
tiilso, fraiiduleiitcr, et decrptiv^ i'abricavit et
rontrafin;, ft fiibriciri rt coutralifri r ausavit,
quoddam scriptum in verbis et iiguris sequent!-
bus, videlicet,
" Aiifiu$t 27, 172R.
" I promise to pay to Geornfe Watson, esq,
or hearer, the sum of six llioitsand four hun-
dred p(»unds, at tlem-.ind, the like value recciv-*
cd. For myself and pai titers,
** Tno. GmscLN."
«* £. «, 100.
31
163] 2 GEOllGE II.
ad frmwe (lamniim pncfat' Tlioroft GibMn, et
pnctJicl' Joliannis Jacob et Uoberti Jacomb,
particip^itn ejusdem TliumiE Gibson, in malum
excmplum omnium aliorum in hujusmodi casu
delinqucntium, ac contra pacem dicti Domini
Itesfis, coron' et di^nitat* suas, &c. £t jura-
tores pnsdicti super sacrainentum suum prsc-
dictum ulterius praesentant, quod pr«dictus WiK
lielmus Hales neqiiiter et deceptive macbinans
et intcndens prst'at* Thomam Gibson, necnon
pncdict* Johannem Jacob ct Robertnni Jacomb,
participes ejusdcni Tbomse, ac diversos alios
subditos et lifi^eos dicti I>f»mini Re^ nunc, de
ma^nis dcnanornm sumrois fraudulentcr et ini-
aul* decipere et defraudare, postea, scilicet pne«
icto septimo die l^ptcmbris, anno secundo su-
pradicio, apud Lon4lon pnedicl', scilicet, in
parocliia et warda praedict', vi et armis, &c.
<|uodilam scriptum falso fabricaturo et coutra-
fiictum in verbis et figuris sequentibus, Tide-
licet,
« August 27, 1728.
** I promise to pay to George Watson, esq.
or bearer, the sum of six thousand four hun-
dred pmmds, at demand, the like value receiv-
ed. For myself and partners,
«» Tho. Gibson.'*
j;, 6,400.
Trial of tVaiiamHaleSt
c
scienter, illicit^, et fraudulenter produxit et
piiblicavit, et product ct publicari causa vit,
tanquam verum et legitimum scriptum, (dicto
Willielmo Hales adtunc et ibidem beu^ sciente
scriptum ult' mentionat' per ipsum Willielmum
Hales sic ut preef'ertur product' et publicat',
falso fabricat' et contrafact* fniasc) ad grave
damnum pncfat' Thorns Gibson, ct praedict'
Johannis Jacob ct lloberti Jacomb, participum
igusdcin Thomtc, in malum exemplum omnium
aliorum in hujusmodi casu delinquenlium, ac
contra pacem dicti Domini Regis nunc, coron'
•t dignitat' suas, &c. Et jnratores praedicti
super sacrameutum suum nrtcriuit pnesentant,
<|uod prtcdictus Willlelmus Hales niachinaus et
fraudulenter inteudens prcpfat' Thomam Gilison,
occnon precdict' Johannem Jacob et Robertum
Jacomb, participes ejusdem Tliomie Gibson,
ac diversos alios dicti Domini Regis nunc
•ubditos, de magnis denariorum sunimis frau-
dulenter et iniqu^ decipere et defraudare,
preedicto septrmo dieSeptembris, anno secundo
•upradirto, apud London predict', scilicet, in
parocbid et wardft pnedict', vi et armis, &c.
ialso, fraudulenter, et deceptive fabricavit et
contrafecit, et fabricari et contrafieri causa vit,
quoddam scriptum gerens tfat' vicesimo sep-
timo die Augusti, anno Domini millesimo sep-
tingentesimo vicesimo octavo, in se purportans,
quod pnedictus Thomas Gibson pro seipso et
participibus promisit solvere Geor^^io Watson,
arm', aut latori, summam sex mille quadrin-
gent' librarum, super demand', consimili valore
recept' ad grave damnum pnefat' Thomas
Gibson, et predict' Johannis Jacob ct Robcrti
Jacomb, participum ejusdem Thomee Gibson,
in malum exemplum omnium aliorum in hu-
jiitmodi otia deuo^aeotiuiDy ac contra pacem
dicti I>omini Regis, coron' et dignitat'
&c. Et iuratores prseiHcti super sacram(
suum ulterias prsesentant, quod pmM^
Willielmos Hales nequiter et deceptive vdm^^
nans et intendens prsfat' Thomam GibsOB^
prsedict' Johannem Jacob et Roberium JaooiP
participes ejusdem Thomoe Gibson, ac divei^
alios subditos dicti Domini R^s nane, ftufl
dulenter et injust^ decipere et defrandmd
magnis denanorum summis, postea, feilte
pruraicto septimo die Septenbris, anno aecadfl
supradicto, apnd London pnedict', adliceti i
parochi^ et warda pnedict', vi et armis, ta
quoddam scriptum falso fabricat' et conlrafad'
gerens dat' vicesimo septimo die Anguiti, hh
Domini millesimo septingentesimo vienM
octavo, in ae purportans, qaod predictos TW
mas Gibson pro] seipso et participiboa proairi
solvere Gcorgio Watson, Ann , aat latffl
summam sex mille ^uadringent' librarM
super tfemand', consimili valore recept',ad6aM
illicit^, -et fraudulenter produxit et publioaril^l
produci et publicari causavit, tanquam TcnM
et legilimum scriptum, (prefato Willielai
Hales adtunc et ibidem bene sciente tcriplHj
ull' mentionat', per ipsum.Willielmum HaMt d
ut procfertur product' et publicat', falso fabrioil
ft contrafact' fuisse) ad grave damnum praM
Thomee Gibson, et prsefat' Johannis Jam ■
Roberti Jacomb, participum ipsius ThdM
Gibson, in malum et pemiciosum exemphl
omnium aliorum in consimili casu drlinqnia
tium, ac contra pacem dicti Domini K^
nunc, coron' ct dignitat* suas," &c.
N. B. This Indictment vras found
the commission of Oyer and Termioer, wk
not U|K)n the gaol delivery.
CI. of Arr, Upon this indictment tha 4e
fendant hath been arraigned and pleaded Ni
Guilty ; and for his trial he puts himself opM
God and his country, ivhich country yoniM^
Your charge is to inquire, &c.
Mr. Strange. May it please your lordship
and you gentlemen of the jury ; this is an in
dictment against William Hales, of LondM
The indictment sets forth, that he being <
person of ill fame and reputation, and intendin|
to deceive and defraud Thomas Gibson, Join
Jacob, Robert Jacomb, and divers others, did
on the 7th of September, forge and coantcrftil
and caused to be forged and counterfeitcNl, i
certain note, viz. <* August 27, 1728. I pn
mise to pay," Sec, This is laid to be to tb
great damage of the said Thomas Gilison, Ba
and to the e?il example of others in like cai
offending, against his majesty's peace, &c. 1
sets forth, tliat, from the same evil intentioai
he did produce and publish, and caused to h
produced and pnblished, a certain note follow
mg, viz. <* August 27, 172B, I promise to pay,'
&c. That he published this as a true aw
lawful writing, knowing the same to be hha
forged, and counterfeit, it sets forth, tlnit k
forged and counterfeited, and caused to tn
forged and counterfeited^ a certain wiiiim
for a Misdemeanor.
■pHl f7| 17 S8, piirportins^ that the
I Ihomu GUmoo, for himstflf and
, pmiMed to pay Georf^e Watson, or
Moot GeDtleneo, the indictment sets
In on the same 7tli of September,
dly,tbe said William Hales did pro-
d ctoMd to be produced, a writini^,
fiipted that the said Tliomas Gibson
MMd to pay Geunre W^atson, or
,§0X>1, and published this, knowing it
iifid at the same time. And this is
i to the great damajire of the said
»Gib«Hi, &c. and to the evil example
icn io like case oflTendini;-. To this
iithe bath pleaded Not Guilty. But
live the fact, it becomes your duty to
bin thereof.
tOL May it please your lordship, and
iemen of the jury ; 1 am of eouoael in
for the king. The Charge against
^t Mr. William Hales, is for forg-
e in llie name of Mr. Gibson, pavable
t Watson, esq. or bearer, for no less a
6,400/. and publishing this note as a
knowing it to be false and counter-
though the fact is laid different ways
lictment, yet it is upon one and the
^f and the difference consists only in
»f alleging it.
eotlemeu, is the first case of the most
lary scene of forgery that hath come
unioation in this place, committed in
anoer, and attended with such cir-
ei , as make it necessary to be prose-
b the greatest weight and solemnity,
imple and terror to others. AW kinds
' are crimes of a most pernicious oa-
bey tend to weaken and destroy that
commerce which ought to he main-
oDgst men : but forgery in the case
able notes, which have a particular
giren to them hy act of parliament,
priTate credit is greatly assistetl, and
ied no, is one of the most dangerous ;
t should prevail, the consequences,
ot eiisy to be foreseen, would certainly
ive and destructive. 8uch is the na-
le offence whereof the prisoner stands
bot howsoever heinous that may he,
will depend entirely u{>on the evidence
i.
men, the advantage taken to commit
ery was from an act of kindness and
one to the defendant. He some time
tiled with one Mr. Booth, book-keeper
ibsoo, to accommodate him with two
r letters franked by Mr. Gibson, in
be pretended) to send news into the
a practice which 1 fear is too com-
t 1 hope this instance will have some
nake it less frequent. It will appear
rom several circumstances, that the
ucstiqn was made on one of these
K, gentlemen, it is a promissory note,
, For myself and partners, lliomas
The body of the note ia all of one
A.D. 1728. [166
hand- writing, not pretended to be Mr. Gilison's*
When we come to the subscription, there is a
rasurc at the end of the word * for,' which,
upon holding the peper against the light in
plainly to be seen. The HiannerofMr. Gib-
son's writing being, pretty wide and loMe, tlie
letter o in the word * for appears to have been
crowded between the other two letters / and
r, and is of a remarkably different cnarac*
ter and fresher ink than the others. From
hence the manner of making the forgery seeine
to have been, by rasing out the two e's at the
end of the word * free,' or at lea&t the greatest
part of them, and inserting an o in the manner
1 have mentioned, and then ailding in the same
line, aHer this word thus made to be ' for,'
these other words, * Myself and partners ;'
which standing a little above the name, Tho.
Gil»son, serve as a proyier suliscription to this
note. It will appear likewise, that the stroke
at the beginning of the m in the word ' my' ia
of the older kind oi ink, and probably was at first
fiartof one of thee's in the word ' free.' There
is something observable in the figure and ap-
pearance of the paper itself: the ohl foidingy
which is most worn, answers to that which pro*
bably might have been the fold of a cover of a
letter, and the pa|ier is torn off at one side and
at the top.
This, gentlemen, being the nature of tlie
writing, and the manner in which it was trans-
formed from the direction of a letter to a iiote
of this value, we shall, in the next place, lar
before you the use which was matle of it. And,
gentlemen, tlie time pitched upon for this pur-
pose will lie material for your considerattoD.
Mr. Gib&oo was gone to Bath, and it was
ihougl.t proper to date the note the day U-fore
he went. No u^e was made of it till some time
afler he m as gone, tliat there might he no r<Him
for applying to tlie p« nnn himself. The day,
and lime oljhe day, which were choMru to out
it off, were Saturday at night ; when orobahty
there wou'd lie no ^ipfiortumly of riiaain:; in-
qtiiries till tli« Monday m'^rniiig loll owing, :ind
consequently a wh'4e d:iy luigUi be gairK-d.
This being 'the opiKirt'iiniy r#'s#iKi'd up«>n, it
will appear that cu Kaiarday tlie 7ih of .Sep-
tember, Mr. lUle^ made u**- of an iii*i/uff»^fi%
that hath confessed himv-lt vt hat*- 1>«* u lin**
in hy him, one Thomas ICum*«'y, a w/»,'..r ?•*>-
low bred to the sea, who wa« a»iv>l»n*' y u-.'i^r
his influence; told him lie mi; -t fg'i w.' f tint
into the city, bid hiin pnt on a j.*-t.o. »- •**«'
of clothes.and observing th^t In- '.*i; » «-*■
hat upon his head, advised him "' ^i*'^ *7''
behind him, and gave him * p4.-. •<»- '
make him appear still Morelk*- ^ rjan •• ''••
ness, Mr. Hales, as th^ w^«
Strand, bought biin a ifr^\^' ^^
case. Tlience becaimt-: .-*<**-'""
and bought him a dark y- *'l
it on, and said, it ^
•».
equipped, he
in 8hire-laae;
Bumsey net
employed, •
teok hi*.
■/i'X *
167] S GEORGE 11.
Without the porter*! sayioflT one word, Hftles
asked, If be did not want Ruqasey P The por*
ter answered, Yes ; and pmduoed a letter di-
rected to Rumsey, which Mr. Hales took, and
readily found inclosed in it tlris note for 6,400/.
fmyalile to George Watson or bearer. In the
letter were two names written with sums
aq[ain5;t them thus, lady Harriot Elliot 4,S00/.
8ir John Hyndc Cotton 2,100/. and under-
neath, * payable to them or hearer.' These
names only being* in the letter, Mr. Hales took
upon him to order Uurasey to write under
them, < James Morcton, esq. or bearer;* and
when this was done, that part of the letter with
the names was torn off, and nut into the pocket-
book (which bad been bou^i^ht for tlie purpose),
together with the note for 6,400/. and a Bank-
note of 20/. and two of S5/. each. Then the
|>ri8oner gave it to Nr. Rumsey, with direc-
tions to carry these notes to the shop of Mr.
Snow and Poltock without Temple- bar, and
there take their cash -note payable to James
Moreton, esq. or bearer, fur 70/. the produce of
the Bank-notes ; and in exchangfc for this for^r-
ed note, to take one of their notes, payable to
the lady Harriot £lli()t, or l>earer, (or 4,300/.
and another to sir John Hynde Cotton or
bearer, for 2,100/. The prisoner gave strict
instructions to Rum^sey, that, if at Mr. Snow's
he should lie asked where he lived, he should
answer, at the upper end of Bond-street; if he
shouUI he asked hij name, he should say, Tho-
mas Fowler, or any other name besides his
true name ; thair it was indifferent what, so it
was not the right name. Rumsey, thus in-
structed, went' immediatfly to the house' of
Mr. Snow and Poltock, which Hales took care
to shew him. Mr. Poltock took the small
Bank notes, and gave his note for them ; hut
olisoryinjr the appearance of the note for 6,^00/.
that it was written on a dirty scrap of pa|>or,
and the difference of hand- writings m it, would
have notbinof to do with that. During this
time Haleti kept at a little distance ; and Rum-
sey relurninff without success, he directeil him
to go to Mr. Hoare's, and (as he had csoncerted
in the former instance) to nay in a small sum
of money not exceeding 7o/. and take their note
for it, and to (>xchauire the note of 6,400/. for
their notes. The names of the persons to whom
the notes were to be made payalilo were then to
bech;ui'3:ed ; forthestrrtlni^eni wns,to make use
of the names of i^ersons that dealt at the several
shops, in order to gain credit to the transaction.
Therefore the names of two honourable persons,
wtl! known at Mr. Hearers, wen* pitched npon;
and the new direction which the pri.sonerpfare to
J^imsey was, to take one of Mr. Hoare's notes
for 4,300/. payable to Hir Richard Grosvenor or
bearer; and another tor 2,100/. pay aide to sir
John Hynde Cotton or bearer; and there also
if he was asked to give in his name, Thomas
Fowler. When it was near dark, Rumsey
went to Mr. Hoare V, and exactly pursued hit
orders. Thcv made him oot A small note for
the casli, and gave such eredit to Mr. Gihsont
miBe, as to fg;m bim Ibe notes bf dtiired, in lies
Trial of WiUiam Hales,
lu
of the 6,400/. note : all wliich Mr. Riunt)^ A
livered immediately to Mr. Hales, wlio ifMj
for bim at a fruit-stall not far from the sbnp.
Gentlemen, Nr. Hales beinf:^ now poiieM
of three notes of Mr. Hoare's, one fbr-fOl
another for 8,100/. and a third for 4,S0Of.lbi
next part of his scheme was to neffooiataMi
exchange them for other notes from Mfei
to hand, in order to entangle the aflfairkUd
make it difficult to trace out the cheat : Ibem
fore liis next orders to Rumsey were, t6anf
the note for 4,300/. payable to sir Rfrfaai
Grcsvenor or bearer, to 5lr. Brassey 's spd flp
changfe it for smaller notes. RunnseJ^ ml
thither that night, and took four smaller MM
of Mr. Brassey's, in lieu of Mr. UoaraVw
two of 1,000/. each, one of 1,200/. and ifi-
ther of J, 100/. But though these notes 4
Mr. Brassey's were given out on feSativdqf
Sept. 7th at night, they were made to hM
date on Mouda^r the 9tb; because, h brfjg
late in the evening, the cash-book was mm
up for that day. These four new notes Mr
Rumsey delivered to Mr. Hales, who wailnl
for him again at a very small distanoe fipsii
Mr. Brassey's -shop. •
The next part of the scheme was to chasp
these notes into negocialde securities eqnil ll
cash, in which there was probably a dsdUl
view ; partly to intricate the affair still ftitMi
and partly for the greater convenience of pa^
rying off the fruits of their iniquity, wbfi
that should become necessary: therefora IM
Itrisoner sent Rumsey to Mr. John Hah^ ■
iroker in Exchange- alley, and directed liisili
acquaint him, that he came from Mr. SsMpI
Palmer, in Mansel-street, Goodnian*s-fisNb|
with orders to buy South-Sea and India bsiii
to the value of 3,400/. against Monday mocBi
ing following.
Thus the matter rested till Monday tho OH
of Sci»tember : but on the Sunday the prisoom
was liot wanting in making his preparatioosi
He then appointed one Roliert Hall, his tayisi^
to meet him at Lloyd's coffee- hoube in Lea-
bard-street, at eiuht o'clock the next momiag,
without leitint; him into the secret of what M
was to i\o. Hall went accordinsrly, ami tbcff
foimd one Samuel Lee waiting for Mr. Hales |
nn instrument made use of by the prisoner ifl
another transaction, which wdl one day appcil
as rank a forgery as this. About niue Halsi
came, and p;ave to Hall Mr. Brassey's note
fur 1,200/. directing him at the i^ametime Iq
go and receive 050/. in guineas, and have k
indorseil off. He told Hall, that if he was
asked, he should tell them he lived in the
Hav-market, or any where else except tbs
reaf place of his dwelling, and that his uams
was John Roberts. So here is anniher shan
name and place of abode. He obeyed thess
orders, received the money, nut in gold, but m
three Bank-notes; and when the persons io
Mr. Brassey's shop enquired his name, bo
told them John Roberts. Whilst Hall was m
tbo shop, he observed that Mr. Hakes waUnd
by; 00 joiloas was be of bis agents, t»r il
for a Misdemeanor.
vifilaat to see how things succeeded,
stif ered the Baok-notes, together with
iHev*s note, on which the 650/. was
I ofll, At Ltoyd'g cofTee-honte ; and af-
• met him again at Ja new ay's cofTee-
Ib ComhUI. There llales retarned
mk- notes to Hall, and ordered him to
m Bank, and tltere recei?e the money
mi in goM. Mr. Hales was still so
or iflBpatient, that whilst Hall was at
ik icoeiving tlie moneyt he took occa-
BMDe in there a|>oo pretence of cHane*
;wiea, and taking no notice of Hall,
my ; after which Hall went with Itim
rerot and paid him the G!>0/. which he
I at tb« Bank.
emen, thus far the design succeeded
9ere are several good notes obtained,
»e cash got, without discovery: but
ision of that will arise out of the part
ftmuey was to act on the Monday
A.D. 1728.
[170
ly yon obsenre there are two notes
Iloare's behind, whereof no accmint
B yet g^iven, viz. that of 70/. and that
I/, payable to sir John Hymie Cotton,
f nrfaich Mr. Rumscy was employed.
appear, tliat Mr. Hales krpt Rumscy
Jlj with him, and lodged him in his
I Saturday and Sunday ; and on Mon*
nnngt when he went into the city,
Rurosey with him, took care to shew
'. Alderman llankey's shop, and dt-
lim to exchange tfiese two notes for
d 2,100/. for Mr. Hankey's notes.
' went to the shop, and they iiaving no
f about exchanging Mr. Ht^arc's notes,
I ti.em, and gave him two of thnr own,
1,100/. and another for 1,050/. both
to ^iainuel Pahncr or bearer ; and the
ig QOl. was paid in money. As to tlie
1,100/. the whole was rcceiveil upon
Ir. Aulerman Hankey's the same day,
•vtn wiio called himself Samuel Lane,
einen, the next part of the transaction
to tlie South Sea and India bonds for
ivhicli hail been ordered to be procured
s the broker. On Monday mornint>^
- received the money of Mr. Hales,
eclions to carry it to ilaU, and pay fur
nnusi. WliiUt Uuiuiiey was gone to
this, it appears that Mr. Hales was
is occasion also uneasy aiirl impntient,
Idiriisey st.Lye<l too long, and sent a
or hi'ii to Huls's ottice, by the name
mas Fowler ; and that Uumsey an-
to that name, and went along with the
emen, we shall next produce to you
not made U[t by Mr. Hals or Mr. (-oie
ler, which will appear to have licen
ut in these feij;;ued names, Samuel
esq. per Thomas Fowkr; whereas
I persons had any thing to do in the
ion, bnt the whole was negociated by
■d Ramsey. Aud it will oe proved,
eaever the privouer sent Rumsey apou
any of these errands, be considered the quca-
tions which were likely to be asked, and gave
him instructions how to make proper answers,
and some of them in writing.
While these things were transacting, the
accident happened that led to the disoovery.
About eleven o'clock on Monday morning, Mr.
Humphreys, a servautof Mr. Hoareandhia
partners, who carries out notes and receivee
money abroad, carried the note for 6,400/. to
Mr. Gibson's, and, Mr. Phillips the cash-
keeper being abroad, left it with Mr. Cram*
lington, another of the servants, with directiona
to pay the money upon it to Mr. Bromfield at
the Bank, who was to place it to Mr. Hoare*«
account. When Mr.. Phillips came home, ba
was surprised to find such a note with Mr.
Gibson's hand to it ; the note not of his own
writing, thouffh it is always his practice to write
the body of his notes as well as the subscrip-
,tion. And no notice having been S[iven of it
by Mr. Gikson, upon this be conceived a sus-
picion, and resolved not to pay it till be bad
lirst spoke to Mr. Jacoinb. The note was
shewn tf> Mr. Jacomb, who, upon finding out
the rasure, and observing the other circum*
stances which I at first mentioned to yon, im-
mediately suspected it to be a forgery, and took
methods for the discovery. He found out, that
one of Mr. Htare's notes had been exchanged
for Bank-notes, and traced out the numbers;
upon which notice was immediately giveu at
the Bank, that if any of those notes were
brought for payment, they should be i^topped,
and the person secured. It happened soon af-
ter this, that Mr. Hales desiguing to get tbe
remainder of the effects into his pocket, carried
Rumsey within sight of the Bank, (who was so
ib^norant a person, that he asked him whether
it u as a church) and directeil Uumsey to re*
ceive money then' on two Ijank- notes, each for
'^00/. part of the Bank-notes L^iven out by Mr.
Brassey ; and theiv upou the omeers of the Bank
stopped Uunis'^y, and enquired into the matter.
Mr. Ramsey uus first interrogated how lie
came by tliese notes ; and atler much hcsita-'
tion and dithculty, at last said, he had them
from a gentleman that stayed for him at Robin's
coAee- house in the Old Jewry. Upon this
they sent a constable, and found Mr. Hales
there, having in his hand Air. Brassey 'a uote
for 1,100/. This note he endeavoured to con-
ceal, but was prevented. They brought him
to thfr i ank,and upon search found about him
the %cry effects which were the whole produce
of Mr. Hoare's three notes, except about tlie
sum of which was wanting. He was
asked, how lie came by them, and by the note
siirned with Mr. Gilisou's name, payable to
Watson, with which he procured them. The
account he gave was, that he had them from
one Mr. Sanuiel Palmer : but he there declared^
that all the eflects that he had about him were
the produce of this note, and wrote down in a
paper how he had disnoM>d of the rest.
Ge^.tlemen, this will appear to you to be tbe
nature of tbe case i and upon this Mr. llales
171] 2 GEORGE II.
was committed, and Rumsey secured. And,
ffentleroen, I apprehend, tliat, though this be a
hmt: series of facts, yet it will amount to a clear
eTidence against the prisoner. No reasonable
man can expect proof to be made of the Tery
act of forgery. Such iniquities are deeds of
darkness, and those who commit them do not
call witnesses to attest the performance : but
next to that we have the strongest evidence.
What arises out of the note itself is of great
weight : the circumstance of the rasnre and
alterations, which 1 will not repeat : the body
•f the note not of Mr. Gibson's writing, whereas
it is his constant practice to write the whole
note with his own hand, and that too in a dif>
ferent form of expression from the present note :
there is no person of the name of George Wat-
son, with whom he hath any dealing. An-
other circumstance material to be taKen into
consideration is the immediate exchanging all
these efRfcts, without any apparent occasion.
One banker's note exchanged for another, Mr.
Hoare's, Mr. alderman Hankey's, Mr. Bras-
sev's — all of them persons of i;reat credit —
'\Vhat account can be given, witliout any rea-
son appearing, why one of these gentlemen's
notes sliould He exchanged for another, but to
darken and intricate the affair P
Add to this the considen&tion of the persons
concerned : Mr. Hales, a bankrupt not dis-
charged, employing such agents as 1 have de-
scribed to you ; himself lurking about in a con-
cealed manner ; all these circumstances shew
the man was doing a wicked thing, which
would not bear the light, nor his appearing in
it. But what amounts to a demonstration,
is his directing these agents to take upon them
feigned names and places, to dress themselves
in masquerade, and to take notes in the names
of other persons, who were absolute strangers
to the transaction.
As this is evidence of the prisoner's publish-
ing a fenced note knowingly, it is evidence
likewise that he forged it : &r, if a person huth
a forged note in his custody, and takcth such .
methods to put it off and give it a currency, it [
is a strooff proof against him of the forgery it- ;
self; and properly turns it upon the defendant i
to give a clear account h<»w he received it, upon !
what consideration, and in what way of busi- |
ness ; more especially in this ca^e, where the
note is for so great a sum of money, that no-
body can pretend to be at a loss or under any ,
difficultv to shew how they came by it.
Gentlemen, when the witnesses shall have
given you an account of these things upon their
oatlis, I apprehend there can remain no doubt
but the charge of forgery against the prisoner ;
is just, and thu prosecution necessary.
Call Philip Booth. [Who was sworn.]
Solicitor General, (Hon. Mr. Talbot,) Mr.
Booth, do yon know the prisoner at the bar,
Mr. Hales r — Booth. Yes, Sir, I do know him.
Sol. Gen. How long haTe you been ac-
quainted with him ?
Booth. Ercr since the year 1709.
Trial of WiUiam Hales,
[17i
SoL Gen. Can you remember the time— bow
was he brought up at that timeP
Booth. I remember him at the shop of sir
Stephen Evance several years before thw
failure.
SoL Gen. Do you remember any thing of t
franked letter ?
Booth. About a year and a half ago be eisi
to me, desiring me (Mr. Gibson being a men*
her of parliament, and his other friends out if
town), that I would do him the favour to give
him two franks. He brought two sheets ti
paper; I desired Mr. Gibson to frank tboii
who wrote on them, To Robert Booth, o^
Bristol. Free Tho. Gibson.
Sol. Gen. How did he write his name P
Booth. Tho. Gibson.
Sol. Gen. What did you do with them P
Booth. I gave them to Mr. WiUiam Halc&
Sol. Gen. Sir, look on that note. Are tm
acquainted with the hand of Mr. Gibson P ISee
whether you take any part of the note to beef
his hand-writing ? — ^Booth, The name is his.
Sol. Gen. Is there any other part of the noil
which vou take to be his hand- writing ?
Booth, The F I take to be part of the wori
< Free'— the F 1 take to be Mr. Gibson's band-
writing.
Sol. Gen. What is the r ? Look carefully
upon it.
Booth. The r may be Mr. Gibson's ; bat the
0 seemeth to be crowded in between the JPni
ther.
Sol. Gen. Do they seem to be of the WM
hand, or of a different one?
Booth. Crowded in irregularly.
Sol. Gen. Are they of the same ink P
Booth. I take them to be of a different ink.
The r is his letter; but I take it there is boom
alteration : here is a plain rasure, where the
letters * my' are written.
Sol, Gen. What distance from the rP
Booth. The rasure is probably where the
two c's stood.
Sol. Gen. The * mv,'and the word following,
do vou take them to be Mr. Gibson's writing?
booth. No, Sir.
Sol. Gen. Take notice of the fold.
Booth. This seems to be the fold of a letter.
Sol. Gen. If you take that to be the fold of a
letter ; Is that the usual place for the folding
of a letter?
Booth. There must be some alteration on the
left-hand corner.
Sol. Gen. Make your own oliservations.
Look on the top of it ; doth that seem the fold
of the paper as at first, or cut or torn off from
any other paper ?
"booth. I believe it is not the original fold of
the paper as it is now.
Sol. Gen. Look on that side next me ; doth
it seem cut or torn off?
Booth. Yes, it is not the original selvedge of
the paper.
Sol. Gen. Is the original selvedffe of the
paper in any other part? Is it cut imi or tiM
original fdredgcP
. n. ii«»-
■*» 9 VV<.' •■•• *'
•• 1
"UUi '*'»^^:j^'. .X isNi ,» , V.
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ft •< Hull n tM I I ti ,. ) I
4 lilhl •
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ilii- IiMm . •
h.th Ml"! II M ■ I / !|
li III • f
« / /''If Hi It f f . f >i If
von li\r<i «iiU ^It it'iUiui
tOU NiTii miy itiMi-M III liu
*«, Sir.
■ fid roiiiiitoii iiiiiiiii*ii 111
*ti -.r-V. «nil |(|»«r iiM Hi
?; i*-j it«i'i|i i» !»/»••
*" "■ V" ". •■/ I. '/I/ -, *• ^ #• •! • ■! ' J ll ■ I H I
^•— *
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» 0 t
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u
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oc
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ouV
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9V*
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175] 2 GEORGE II.
Soi. Oen. I ask one qaestion more ; did Mr.
Gibson e?er give franks, witbout writing bins-
■etf the superscription ?
Booth. I know not but that sometimes he
Mr. Strange, I desire he may fold Ktbus,(pro-
4meing a sheet of paper whieli he bad folded.)
This half sheet as large as yuu can: — Soppose
yov see where the name Thomas Gibson is
wrote, I enquire whether, when the direction
iras o?er it, there was room to tear off soch a
paper as this, (shewing the note) and hare none
of the direction? You see the distance from
Free Thomas Gibson to the top of the paper;
was the (biding so large, that there might be
the direction torn offhand jet this (the note)
remain?
Booth, Am I remember, it was a rerj larcre
sheet of paper, and ?erj largely fblded. This
I remember the more particularly, because
Mr. Hales hath endeaTonred the same thing
•ince, and I have some of them by me. I be-
tiere the paper was large enough that there
might be the direction torn off.
Sol, Oen, Pray, will you k)ok where Mr.
Gibson's name is wrote, and tell me whether
jou apprehend that end is torn or cot T
Booth. This was the torn end, and the other
answers exactly.
Mr. Robert Booth called and sworn.
AU, Gen, Sir, hare you ewer had any letter
kj tlie post from Mr. William Bales?
B. Booth. No, Sir ; I nerer bad any letter
from him by the general post.
4tt, Gen. Can you recollect that yon erer
bad a letter from any body, franked with the
name of Thomas Gilison ?
K. Booth, 1 never had, I am positively sure
•fthat. ^
Att, Gen, Do you live at Bristol ?
fi. Booth. Yes* Sir.
Att, Gen, Do you know of any other per-
son there of your name?
R, Booth. None at all.
Att. Gen. Pray, had you ever any letter
from Kr. Hales, either franked or otherwise?
R, Booth, No, nor ever any correspondence
with him.
TTumuu Rumtey called and s«vom.
The Note proposed to be read, and read ac-
cordingly.
" Augusl 97, 1738.
** I promise to pay to George Watson, esq.
er kearer, the sum of' six tJiousaod Ibifr luin-
tiscd poiMidsi at demand, the tike Talus re-
cs^ved. For myself and partnecs,
" Tho. Gubsom.*'
'' «£. 6,400
Then the Note was banded about smongst
Aeiwy.
Att. Gen. Now, mitlemen, it is proper Ibr
ymt lotake noliee of 9ie obser? ations thst bm? e
»»sa asaiekj the whiiissis vpdii the lypstr-
Trid of WUliam Hales,
ance and ?iew of the note, the sixe and
of the pa|>er, tlie rasore, the differenc*!
ink, the letter o in the word * For,' ;
other letters. I desire that you will hx
and judge whether the side of the pap
to the name halli been lorn off from sot
else, or is as it was originally. We i
the next place, shew the use that iras i
thisnote.— — Mr. RumseT, do you ko
defenilaot, William Hales r
Rurnsfy. Yrs, Sir.
Att, Gen. How long have you know
Rumuy. 1 knew him above a twelve
agone.
Att. Gen. Did you see him at all
temher last ?— JlamMy. Yes, Sir.
Att, Gen, What trade or business i
of yourself?
jRifmsey. I have been at sea ever si;
years of age, except when in harbour.
Att, Gen. Well, Sir.; What time n
Sefvtember that you saw Mr. Hales, ani
business did he employ yon in ?
Rumw, I saw him every day.
Att, Oen, Did you see him Septem
7th?— Hamiey. Yes, Sir.
Att. Gen. What day of the week wa
Runuey. Satnrday.
Att. Gen, What did he say fo you ?
Rumtetf, He bid me go into the city,
dress me in tliese clothes.
Att, Gen, What okttbes had you on I
Runuey, A lightish-coloured coat,
red waisiooat and oreeches.
Ait, Oen, Did be say any thing aboi
bat?
Rumtey, When he spoke to me to
the city with him, I had then a laced hi
new hat, with a broad open lace.
Att, Gen, What did he say to yon ab
Rumtey, He told me, he had re
should wear a plain one, and asked if
one : I told him, No : be then desired
take his own.
Att, Gen. What time of the day wa
Rumtey, About four or five in the afti
as near as I can guess. •
Att, Gen, Did he tell you on what fc
you were to go into the city ?
Rutnsey, No, Sir.
Att, Uen. Whence did you set out P
Rumsey, From his own bouse in
street, Westminster.
Att, Gen, When you came into the
did you do any thing there ?
Rumsey. He went into a shop, and
me a pocket book. [Produces the j
book.]
Att. Gen, Let us see it. When y
bouglit that, where did you go afierwai
Runuey, To Holborn, to a place whe
sell perukes.
Alt. Gen, Was it Middle Row ?
Runuey, I believe it might be ; but '
was there before.
Att, Gen, Did he Idl yoo be woild ]
joa wilk one ?— Ruiaify. Yes, 8jr«
4
Jot a Mitdemeanor.
IBh. Wlikt sor of one was it f
a I bnve it ID my pocket. fPulls
-cnloutrd perake.l
Gn. Fut it uD i I do not obsecre that
V d«w a dark peruke. Diil yuu use lo
M. No, Sir.
. Cm. \V tut peruke had you oa before,
l*a»(li! vuu ctiBU^;!^ it f
m». I'hia, Sir, tiiat I bare here. [A
gtlMrad ptruke,]
, 6<H. After be had SHetl you wilU a pe-
rtUier did lie carry ynu ?
Mt^ T« Joka'B culfee-hauKin Sfaire-
m dk) Mai tell roe whitlier we wer« go-
irl«r«bat.
Or». Wtaftl ka|ipeoed liicre ?
HBf. We went iam ■ back room, and
kattd ink liruught us. Immediately a
Cn. Did the porter speak lo you ?
Hnr. No; lieaibed (he porter, ir lie
Im? Ueuid, Ye«. The porter pro-
■ ItUer VtirecteJ to me, aiid ke bid lue
Co. What did you find !n i( ?
-y. I I'ooud a Dole fur 0,400'. payable
* WataoD, eiq. or bearer.
LAuk on that ; tell us wlielber
_'. U lobe the note?
^ Yea, Sir ; I taku that lo be the
R (lie bMt of a>y knowledge.
What else did you find in Ihe
[ I Foand writlen, ■' Lady liarnot
'- air JolinlfyiideCiitlon3,100;.
^iVliere wax it written ?
ntkebodyol'lbeleuer.
Was there any thing written to
I remember only these
i Cm. What did he order tou to write
mg. " Jaum Moreton, or bearer."
r Oim. Ai\er he bad bid you write this
what illil be do with ihe paper ?
tftjf. Tore ihew names off.
. GtM- What dill be do with the rest of
tmt—Rm<*ty. I know noi.
lOtm. WhoihehadlornnlTthesenaniea,
•rwkk ohai you had adileil, what did
mji' lleptUHiD the pocket-book, with
Ir U 0,400/. and a 40/. uoIb and two
MeL Ha lh«u ordered me lo ^o to Mr.
Mrf Mtock'a »hnp, lo g;ive tbem the -lOl.
Hi tb* two othiT notei, and to take their
lanbW lo JamcB Mareton, or bearer.
Gra. For what auru ?
m, Itn* to tdl thcmlbatheliredatthe
■H tf &<nd>«treet ; but I nerer knew
~ ' ad me to il««irti for the 6,400/.
■ At *^iOOi< y»>>bl« lu lady
A. D. 1728.
on
Harriot Elliolt, and 9,IOOI. payable la lir Jobiu
Hynde Cottou, or bearer. ,L
All. Cai. What furtberdirectioDS did ii«g
give you ?
Kumtet/. If my name was asked, be bid mi\
lay that it was Tboma-f Fowltr, or any otherjj
it was an initiffereni tbioj,', and I mignt n .
use of any name but my own. He had be«t ]
so »ery kind to me, and I had so gDod »i
nion tliBt he designed no ill, that 1 readily iJ
as he ordered me.
AU, Gen, After he had given you 1
pocket-book with these notes and iosiruction^ J
wbitber did von go?
Runucu. To Mr. Snow and Pollock's.
Atl.Cltn. Wbitber did Mr. Hales go ?
Ruriaey. A liitle way to shew me the houw^^
Alt . Oat. WbRt happened ut ibis sbop i
Ruinuu, I asked for ibeir note for the sma^
notes, wliich they readily gave me. 1 ^''^Bj
produced llie other note, and desired thnTa^
notes i the gentleman said, he did no
accept it, because it waanolallof Slr.Gibaon't.J
own h and- w riling.
Att.Ccn. Didhe mention any other re
Rumicy. 1 remember not.
Atl.Gm. Dill be ask your name ?
Aumcy. I think he did, and I told him Tbo-^
Att, Gtn. Did any thing further happes 1
there ? — Rumiei/, No, Sir.
Att.Oen. What did you do then ?
Ramsey. I went back ; Mr. Hales met n
a little way off, on that sideof Temple-bar nej
tbe shop.
All. Gen, Had be appointed to meet yoivJ
there? — Rttnary. No, 8ir, j
Alt. Gen. VVasit within TiewoftbeshopF 1
Rumtfy. Yes, Sir.
All. Gen. What did you say to lii
you enme back ?
Rumaci/. He Baked me what I had got, aoj^
1 told bim ; then we went back to John's cof^V
fee-huuse, where I Ka«ehim the note; helheoT
bid me write, air Richard GtosTcnor, instead oC J
lady Harriot Elliott.
.il((. Gen. On ihesamepaper.or anotherF ;
Rumsev. 1 cannot say.
All. Gen. Did be bid you strike
name. "Lady Harriot Elliott ?"
Runisn. No ; but write on a plain paper, J
"To sir Richard Orosvenur 4.300/. Tn!" '
Hynde Cotton 3,100/. pay^ible lo tlicm or||
Alt. Gen. A^er ibia, what further directioia ~]
did hegiTeyou ?
Ituiiiset/. HeorderedmetogotoMr. Boare^J
in Fleet-street ; be went opposite to tbe shop, J
and shewed me ibe sbop. J
Alt. Gea. What time of the aRemoon wU^
it? — Rumtty. A little before it was dark.
Att.Gen. What o'clock?
Rumiey. Half an hour or three ((uarlers
fore it was dark.
Alt. Gea. What instructions did be gita
you la observe at that sbop ?
Rumtey. To retxive fur ihia nola their uatM
^ A
179] 2 GEORGE 11.
for 4,300/. to sir Richard GroB?eiior, and 2,100/L
to sir John Hynde CottOD, payable to them or
to the bearers.
Att, Ccn, Did he give yoa directioils about
taking any other note ?
Rumsey, I have a notion of some other note,
but I cannot say positively what it was, but it
did not exceed 70/.
Att, Gen. Did he gire yoa any thing In
notes or cash P
Runuey. Much the same as before.
Att. Gen. You say you had a note fironH
Mr. Poltock; did S(r. Hales return that to
you?
Rutnsey. I cannot say positifely ; but it was
that, or some other notes, not exceedini; 70^
Att. Gen, Did he give you any directions
as to your own name ?
Rumsey, The same as before, Thomas
Fowler.
Att. Gen, When yon went to this shop,
what peruke haid you on ?
Rumtey. The dark one, and the other ilk my
pocket
^Att, Gen, What passed at Mr, Hoare's
BnopP
Rumscy. I received their ngtes, one fbr
4,300/. payable to sir Richard GrosTcnor Or
bearer, the other for S.lOOl. payable to i^
John Hyndc Cotton or liearer.
•Att. Geri. What did\oo give for them P
Rumsev. The note of 6,400/.
Att, Oen. What fbr the smaller noteP
BMtM€u. I cannot tell.
Att, Gen, For what sum wa» that f
Rumtey, 1 remember not, but it did not ex-
ceed 70/.
Att, Gen, Where did you find Mr. Hales?
Rumsfy. He told me be would wait for me
at a fruil- stall at the end of a court about six
doors further. 1 went thilhcr, and delivered
the notes.
Att, Gen, Did yon deliver him the notes at
the fruit- sUll ?
Rumsey. 1 cannot be positive whether there,
or nt the coffee-house.
Att, Gen. Do you know the court where
the fruit-stall wasr Was it Mitre-conrt?
Rumtey. i know not, not being acquainted
Vfhh the town.
Att. Gen, How far from Mr. Hoare's ?
Rumt^, About six doors.
Att, Gen, When you gave him the notes,
did yoa deliter them with the pocket-book, or
without? — Rumtey. Pocket-book and all.
Att, Gen, Where did you go afterwards ?
Rumtey. He took a coach, and bid the
coachman driye to the Royal- Exchange.
Att. Gen. Whither dia he go when he came'
there?
Rumtey. He went out of the coach, went a
little way with me to Janeway's coffee- hobae,
called for pen, ink, and paper, and bid itfe
write •« 1,200/. 1,100/. 1,060/. 1,000/. to Sar
muel Palmer or bearer."
Att. Gen. WhatiostmcfioAfdidhe^teytfli
ftbottt Suanel Palmer ?
Trial of William Hales,
Rumtey. To say that lie lived in A
street, in Goodman's fields.
Att. Gen, After you had done thia, v
did you go next ?
Rumtey, Next he carried me to Mr.
ward's, a banker in Exchange- alley. .
then dark. He bid roe desire their nc
these sums, payable to Samuel Pale
bearer, in lieu of the 4,S00/. note i
Hoare's.
Att, Gen. Wtiat happened there ?
Rumt^. They said they could not dc
Att. Gen, Where did you go next ?
Rumtey, I went to him, who was cl
the door. He took me to Mr. Brassey'
me desire their notes for the same sum,
of Mr. Hoare's note payable to sir h
Grosvenor. They gave me tlie notes
asked me, what Mr. Palmer it was?
that he lived in Muusel- street, Good
fields.
Att. Gen. Did you say any thing fur
hhn?
Rumtey. I think not ; if I did, it wai
Mr. Hales directed me.
Att. Gen. Did they ask your name ?
Rumtey. I am not positive; if they
told tliem as elsewhere, Thomas Fowler
Att. Gen, Whither did you carrAr ihe
Rumtey. I carried them to Mr. Hates
Att. Gen, Where was he?
Runitey. He was by a shop at the cc
a court ; he was in the court, and came
there. This was a little beyond Mr.
door. He bid me ask the price of 8oi
bonds, and ask them, whether they coi
1,000/. worth by Monday inornmg?
said, (hey buiicve<l they could. We the
to Jaueway's coffee- house.
Att, Gcii. Wlint did he then ?
Rumsey. He caHed for something, [
it, went to Stocks -market, theucc took
and went home.
Att. Gen, Where did you go? D!
leave him there ?
Rumt^. No, J supped with him.
Att. Gen. Did he make any fuither a
meat with you ?
Rumtey. He bid me be ready on 3
morning in the same clothes.
Sol. Gen. Where were you ?
Rumtey. I was at his house; he
me there.
Sol. Gen, Did any thing else hapj
Saturday f^^Ruttucy. No, Sir.
Sol. Gen. Were you to put on^ the sa
and |»eruke ?
Rumtey, Yes, Sir ; and he ordered tl
to comb and powder it.
Sol. Gen. On Monday morning dU ;
as directed ?
- Rumtey. Yes, and lie then told out
broad pieces and ten guineas.
Sol, Gen. Those notes that you recc
Mr. Brassey's, do you koow the dale ol
Rumtey. Yea. &i Monday moaiin
%\gl
Jir a MkitMtoMir,
[I8»
.11
SI
t1
•AU \\^ bad the nine wig on, I be- t
i^Iajfkknnrlriin.
Af^iUiiir. Let him pot the wig on.
ftBW Mii M the ilaik wig.)
1£l ro, I mily beUe?e that that is the
MpHilliMgh I never nw him before
mwt. fle WM a good genteel yonng man,
rikiMwif.
alUfiff. What clothes had he on ?
i I cannot directljr tay.'not kaovring.
MXa, Now we are going to Mr. Hoarc'a
Hr. Iwmtr called and ■worn.
' JKfim. Mr. Turner, look on that paper ;
JfcfljMKeitfirat?
flnr. On Saturday erening, September
KGn. Pkay.can yon recollect with your*
Wife it was that brought it you ?
Imr. Sir, 1 did not see Mr. Ramsey
L^b CBBie into the shop first.
r 1: 'Bkhaari Hoart called and iwom.
Ga. Hr. Richard Hoare, pray tell us
lyin saw that bill first?
■ra On the 7lh of September last, about
[Abek in the evening. That gentleman (as
' k) produced Mr. Snow's note, and a
Hie of 95/. for which I gave him onr
iftr 70^ After which he produced this
[Mrf Mr. Gibson's hand, and another paper,
" '\ oar notes for that sum. I had not
Jai; m the business, and not knowing
D*s band -writing, called Mr. Turner
thai afiair, after 1 had given the 70/1
^Noteread:
ir Richard Gmsvenor, bart. 4,300/.
frJohn Hynde Cotton, 3.100/.
ftGfli. Whose hand -writing is this P
It is mine. Sir.
L**»f
At GeiL Do you remember what ^ou did
Mlhitoote, or where you delivered it?
(jr. At Mr. Hoare's.
> itL Cm. Mr. Turner, will yon give us an
^m what waa done upon the producing
' 3Wr. BIr. Hoare sent for me. F think
^hj npon the counter both the note Mr.
Wy brought for 6|400/. and this little di-
^jn. I made these notes pavahle accord-
%ki knowing that sir John Hynde Cotton
tfhmess at Mr. Hoare's shop.
AlG;a. Doth he?
Tvwr. Yes, Sir, he freqaently doth.
flU. Crn. Produce the three notes given at
v.lhtre'sshop.
Ttner. These are the notes (producing the
1^ wbich I gave in exchange for Mr. Gib-
1 Ml sole, and the 70/. note Mr. Hoare wrote,
*i|l signed them, and gave them to Mr.
^ uM. Tou aay, these are the notes that
^pve in ezcbattffe for that note ; do you
^ what became of that bill afterwanb?
/
A.D. 17M
Turner, After that T had delivered thi
notes, I had thia note (Mr.Gibson's 6,400/. note)
in exchange, brought into Mr. Hoare's cash, in
lieu of the other.
Sol, Gen. Did you send it out ?
Turner. Yes, ut>on Monday morning.
Sol. Gen. Will you give us an account what
was done upon tliis ?
Turner, 1 know nothing farther.
Sol. Gen. These notes which you have pro-
duced, can you give an account what became
of them, or when they were brought back t#
Mr. Hoare's ?
Turner. I did nothing farther about them.
The Notes read :
" I promise to pay sir John Hynde CotlOB,
or bearer, two thousand one hundred pounds,
on demand, for Mess. Benjamin and Henry
Hoare and partner* Wiluam Turner."
" Septemher 7, 1798.
<< I promise to pay to sir Richard Grosvenor,
or bearer, four thousand three hundred ponnda,
on demand, for Mess. Benjamin and Henry
Hoare and partner. Wiluam Turner."
" September 7, 17«8,
*' I promise to pay James Moreton, esq. or
bearer, seventy pounds, on demand, for lleii.
Benjamin and Heniy Hoare and partner.
«« William Turner.**
Mr. George Lee called and sworn.
So!. Gen. Where is it that yon live ?
Lee. At Mr. Brassey's in Lombard - street F
Sol. Gen. Did you ever see that note before f
(Mr. Hoare's note for A,300L)^Lee. Yes, Sir.
Soi Gen. Upon what occasion or when was
it?
Lee. It was on Saturday Sept. 7th brouglit
by Mr. Rumsey to Mr. Brassey's in Lombard*
street, near seven o'clock in the evening.
Si)L Gen. What passed upon it ?
J^e, Bcingf brought there by him, he pulled
a paper out of his pocket, desiring four notes
payable to Samuel Palmer. I have three of
them by me, and an account of the other. One
was for l,'20O/. two for 1,000/. each, the other
for 1,100/.
Sol. Gen. What dki you give him them in
exchange for F
Lee. Mr. Hoare's note for 4,300/.
Sal, Gen, Did you ask who Palmer was?
Lee. He told me that he lived in Msnsel*
street, in G(M>dman'8- fields. 1 asked him, whe-
ther be was a merchant ? He said, that he could
not tell. We had a person dealt with us before
of that name. I asKed, whether it was he?
He said, that he could not tell. 1 enquire<l at
Woodward's, where Mr. Hoare doth business;
they said tl.at there had been a person there of
the same name. I iHftrari to suspect some-
thing. I then went to Mr. Hoare's, to inquire
whether it was their note ; they ner|iiaintf.fi me
that it was, and showed me M.. Gihson's. I
said that 1 believed the name was IMr. Gibson's
haudi but not the body of the iiolc.
m}
2 GEORGE II.
Trial of WiOiam Halest
[188
SoL Got. lliis iransaotioa wm oa the 8a-
tuc4ftyf8a||t. fib ; bow came 4iie bills to be
dated! tbe Mb r
JLcf. Our acGOunta were balanced for that
day, it bein^^rjate in the er^ng; therefore
they were dated the 1Kb.
Sai.G£u, What beoame of them afterwarda?
Lee. They came back afl^ain : tvo of them
came the sasie da^, Ibe otber the next •moro-
Sol. Gem. Who brougiftt them P
Let, The mobt of the mooey -was fiaid to
Mr. Hals the broker; there was 650/. paid to a
perioo who bron^t one of the ooies in the
morning; I believe that it was about ten
o'clock. We asked him his name ; he said,
it was John Roberta. He wanted to have 650/.
to be wrote off from mie of the notes, and want-
ed the mOD^ for it. As 1 bad aome reason to
suspect on toe Saturday night, and he coming
80 soon on the IMonday morninir, I asked him
whom he came from 7 He sail. Mr. Mansel.
I hesitating, he said, the gentleman that it was
to ; I said, Palmer ; lie said, Pakaer in Man-
eel atreet. I did not know but that there
might be some demur on Mr, Hoare*s note ;
then^Mie, to protract time, I told him that he
might receive the money at the Bank. 1 gave
hia Bank-notes:
No. 11, payable to Mr. flankey, 100/.
106, payable to Mr. Collett, 50/.
131, pay able to Mr. Charles Shales 500/.
Which together made up 650/.
Sol. Gen. Yon wrote off, 650/. Did yon
ddiv^ the note, when indorsed, to the person
that brought it? — Lee, Yes, Sir.
SoL Gen, This was a 1,900/. note; How
was the oilier 500/. paid ?
Lee, The other part was paid off at several
pajnments to Mr. Hals.
SoL Gen, As you have given an account of
that note, can yon give an account of the
other?
Lee, Two to Mr. Hals, Sir, at several pay-
ments.
Sol, Gen, How much was each for ?
Lee. A thousand pounds.
SoL Gen, Well then, of these notes two for
1,000/. each have lieen paid ; Hath the 1,100/.
note been paid ?
Lee, Four hundred and twenty pounds have
been paid as part uf the 1,100/. and the rest is
(Hit-standing still.
Sol, Gen. Do you remember the ibrm of the
person that came to you by the name of Ro-
berts P Is that man the peison ? (Pointiog tp
llcdiert Hall.)
Lee. Yes, Sir, I believe that is the person.
Robert Hall called and sworn.
SoL Gen. Mr. Hall, pray what trade are yon
^'f^HiilL Ataylor,Sir.
SitL Gen. Did you evor work fur Mr. Hales?
lialL Yes, Sir, several years.
S(d. Gen. Do vou know^him .*
mn. Yes, vflfy well, l^r.
Sol, Gen, Had yon anr coBversBtion wkk
him in September last ?-- nalL Yes, Sir.
Sol. Gen. Did he send fbc yon ?
HalL He sent his tbotman for me, Septem-
ber 8th, Sunday night.
SoL Gen, What message did the fbotmaB
bring vou ?
Hall. He came and knocked at the door;
m^ wife opened the door. He desired to wpetk
with me ; she said that I waa in bed. He
came up, opened the cmrtain, told me he baA a
message for me, I must be with his master if
nine o'clock on Monday morning at lioydli
coffee-house in Lombard- street; fsaid, that I
must be with Mr. Rumsey at that time to tahf
orders for clothes ; he told me, that I should mctt
Rumsey there. I went to Lloyd's, and waUwl
in the coffee-room. Whilst I was there, tberd
came up one Leigh, who asked me what busi-
ness 1 came about? I said, That 1 couM not
tell, but waited for 'squire Hales. I asked him
what his business was ? He said, that he bad a
letter to meet him there. I drank aom^hing
there before Mr. Hales came, which was the
best |)art of an hour. He first mentioned
aomething to Leigh ; he then asked me to stay
one half hour more. Accordingly I sat down.
He talked awhile with Leigh. When Leigb
was dismissed (whither 1 cannot tell) he took
me up. In the passogu he gave me a note, and
desired me to go to Mr. Brasscy's, and receive
650/. upon that note.
SoL ben. What note was it ?
HalL About 1,200/.
Sol Gen. Whai dirfctions did he give youf
Hall. He told hip to go tu Mi . Brassey 's the
banker, at the Acorn ; he told me t«i receive
650/. on til is note ; he told me to mind that
there was no mistake. If (said he) they offer
to pay you silver, give them halt' a crown to
pay it you in gold. He told me tliot 019 gui-
neas and one sliillinar would make just 650/. I
took these notes (the Daiik-nutes he received at
Mr. Brassey's:) he looked them over, and
said that it was all very right.
SoL Gen, Look on that paper : did you ever
see that paper before? Is thattiie note that
you delivered lo Mr. Brassey ?
HalL Yes, Sir.
SoL Gen, You say, that yon had instrnc-
tions to receive it in gold : ifid they pay it in
Hall. No, Sir, three Bank-notes.
Sol, Gen. What was the amount of them?
Hull. Six hundred and fifty pounds.
Sol Geti, What did ^\oii do with them?
Hall, I gave them to Mr. Hales.
Sol, Gen. Did they wrire imon the notef.
Hull. Yes, the\ discounttii this 050/.
Sol. Gen, When sent by 2^1 r. Hales, had yo«
instructions what nanif \ou should go by ?
HalL Yes, John Rubvitst.
£('/. Om. or what place ?
Hall The Huy- market, or any place wheM
I pleascfl that way ?
Sol, Gen. Did you aee him whik yoa werri
in the shop?
I .'.!.' pas«a)^inL|njd'«coffee-li<Mse.
Minefiank-iiate&roL' 6Ml. wliicb
I it> JHr. iUlet. m you ewet te«
ilterwardar— Ho//. YeB.Sir.
.^(in- li|>OD whotoecaiiiun ?
B*II. lie laid me, ttint il' 1 wntiM lake a
inll ada ihn piazu by ihe Unyal Exchange,
kvsU noir tu till'. Aceoiilmgly lie came
k at, and al the vuflee-house (JanewHy's
Mbbaoan) Ka*e air tbem agnin- He askifd
m, wfafbsr f wBi <>ver at the Bniik ? I luld
iBtallAll ludbMi>wilhitiit,buln»crrecmeil
Snaary tfaerc for myselt' or an; boily gIk.
W ■> sn wil receive Uiia in gnli), ur il' I
ifeaU b« ollcnid Bilrer, tu ilu ua dif ecieil before.
Stt, Orm WhU were you to do with Itf
11^ Tn iiriag; it lo him at lliis cuHet^liouse
Did yon go to the Banb ?
< II I to iiue there ; be bid me go to
' mail, and be would sign my
■ In him, lie signol tiieill ; I llieu
. ilie sanie perjon, who ]istd me
U.
er« Iber the strme tills which
aiMr. Drasscy's?
Uid yon r
In ^tjM.
■oeire it iu gold or
liim wtica yuu were
lorihclEtlcranhom
JulUc'inLe
ny notice of you ?
Sif Nk.! ..
MAOtm. Auryouorhim?
.&IL N«i beiiiit buKy reiieiitiaK the money.
& Cf. If « Mw you. did iwt he 1
tLOi*. What did yondo with it^
BtlL I Mok it at Ihc Rank.- Ai I was
'B(iK>ri'r''"Hltey, Mr. Williani Hales
•<a aakdioit bv Ibe utlEV, we tiirutd into a
■^-1 (Ibc 'iii'.U.- and »M:e|itre tavern) ; he
(.vjjf drjnrr, ia<i called for an half ^ot
' - ' - die money, he counted
> < ynu any reason why
.. , -.I, you were a longtime
id. OtiL l>id b« offer you any thmg tor
fwpa«>.>
BtU. Vm hut 1 aaid iWt I would have
MtMf fram a K'nllcmau that I had serveil ko
^(- lleiH>l,ill wauldcallun him the next
*;, be wnalJ lend tne 101. and I ihould work
!■«.
U. da. Wby did you |f9 by the name of
Ki*wvr
£Ui- I tkM^ I iH(bl 4a a*/ Uiiog for
Mr. Ronkfy called and awom.
Sol. Gen. Mr. iTankey, will yon siFe sn ac-
lUBt wbeihei' any bill* were brought Id you,
hat they were, and by whom brought?
Jfankey. Mr. RuiMey (this gefltltunsn here)
ime lo me od Monday mor Aing, 8eplciabe*
the 9lh, »iih two notes, tor which I gate bim
myoolps, payable to Satinid Palmer dr benier,
one fir 1,100(. Ibe olberTor 1,0^. wlliuh whh
£0'. amounied to Mr. Hoare's notea or S.IOOI.
Bod'TOi.
Sol, Gen. Did you hsIi htm His name?
BaHkey. No ; but I ashed htm who KotlttKl
Palmer was, because we had a geiilleman 0^
ihal namelbat had a drawing account with as,
and I thought that tMs was (o be pnt to hia
DCOouDt ; but he (old me, that it was a gen-
tleiDan in Maosel-ftreet in Ooodinau's-fleldv,
When he had done his business, he went out of
Ihe shop. He brought a liRle bit of paper,
wherein was written ti) go to alderman Han-
key's and gMIhe two DoiCB figured down 1, |00/.
1D5I)'. and 90f. in money,
Sol. Gen. You have looked on Rumsey ; \»
thM Ihe very man ?
Hankey. Yes. Sir; I was witli him, when,
having b«en apprehended at the Bank, be wW
Sol. Gen. Do you remember any ibfny of
one Lane's feKhmg any money ?
Hankey. If you wilt favour me whh the
notes, I can tell the Itetler. The I.KIU/. n<yi«
was hardly dry, when he sent a purtcr-ttiM
fellow, who came to a servant of ours, atnttfr.
sired that he would indorse 5502. nnd give it
liim in guineas ; he did it ; he had i>, and
Went mitof (heahop. I believe ihat it wssnot
an hour before Ihe same person came n^ain,
an4 said thai Mr. Palmer bevfged pardua fer
giving ns sDrh trouble, he did Doi kmvlr he
bhould so snoB liave occasion fur it, desired that
we would give hint tlie renraiuder hi Bunk. I
aaid, that we Imd not just the sum i» Bank,
but I would give it him In money; he said,
then be must go and fetch a bag. Tfe went
accordiirgly, and fetched a ba^. We asked iris
name ; b« said, that it was Samtiel Lane, and-
that he lived in MarlDe-s']unre, I gave him
523 guineas and an half, and 6i. Qd, which
ciiRipkled thai nnte. .As to the other note, it
had not been writien long, but a servanl lo Mr.
Hals, or be himself, came and desired that £
would give him ■ nnte fur 853/. 14i- 3d. p«y-
oble to liim. 1 indorsed it, and gave bim a
uole for the sum that he would liave.
SU. Gen. There are three notes that com-
pleie the sum of i,oW. Do you remember
my Bank-bills T
Uunk^. I paid none at at).
S(ri. Ocn. Do yon know any lldiigr of Mi«
rflMdoe bein^ paid '! Give an accoaal what
Huitk*!/. I'he remainder was ihns )iaid;
l,lWf,wiui|«idtaSiuuuelLaae; l,o^ttf,b]ri»
191]
S GEORGE n.
Trial tfWmiamHulet,
[19
doiwmeDt for Snnael Palmer, fi>r whicb the
person had a note payable to Mr. Joho Hals
for the same sum ; for the reroaioder of that
note, two notes were given, payable to James
Hickman.
Sol. Gen. Were you present at the Bank, Sir,
when Mr. Hales and Mr. Ramsey wens seised ?
' Uankey. No; but I waa there, Sir, when
he waa examined.
Mr. Benjamin Cole called and sworn.
Sol. Cen, Mr. Cole, do yoa know Mr. Hals ?
Cole. I live with him, »r.
Sol. Gen. Are you his servant, or partner?
Cole. His servant
Sol. Gen. Do yoa know any thing of Mr.
Rumfsey ?
Cole. On Saturday September 7th, he came
about seven o'clock to me, and enqnired the
price of South-sea bonds. He said, that he
sbonld want a lar^ parcel. I promised to
get him them as cheap as I could.
Sol. Gen. What name did he use ?
Cole. None till Monday the 9ih of Septem-
ber. I then bought ten South-sea bonds of
100/. each ; 1 asked him what name they
abould be wtered in f He said, Samuel Palmer
in Mansel street, in Goodman's- fields. The
amount was IfiM. 14f. 4d. for which he gave
me Mr. Brassey's note for 1,000/. and the rest
in money.
Sol. wn. Did you observe the date of that
note?— Co^. I did not observe the note.
SoL Gen. Were there any other bonds ?
Cole. He sud that he should want more.
This happening when tliere were but few came
to market, 1 told him I could not procure him
■0 many as be mentioned. Then he desired as
many Soutli Sea bonds as I could get, and the
rest India. I procured four more South Sea
bonds, and twenty India bonds. He paid me
a note of Mr. Brassey's for 1,000/. and ano-
ther note of Mr. Brassey's upon which there
remained 550/. and one note of Mr. Hankey's
ftr 1,050/. which made 3,600/. upon which
Mr. Hals paid him 41/. 2i. 3</. which made
the balance.
Sol. Gen. What name did betake?
Cole. He said that his name waa Thomas
Fowler, and that he lived with Mr. Pdmer.
Sol. Gen. Was there an account drawn up ?
CoU. Yes, Sir, this is the abstract of the ac-
count*
Debtor, Samuel Palmer, esq.
To ten South Sea Bonds - ^. IfOOO 0 0
Interest 3 Months, 75 Days 18 4 4
Premium 4/. per Cent. - • 40 0 0
CommisiioD ••••- 0 10 0
1,058 14 4
To twenty India Bondi • - S,000 0 -0
Interest 5 Months 9 Days - 35 6 0
Premium 4/. 19«. per Cent - 99 0 0
Tjiwnnniiiiiffl »•«»•• lOO
S|13i § 0
To lour South Sea Bonds - - 400 O
Intemt 3 Months, 75 Days • 7 5
Premium on ftOOL at 41. per
Cent. - 8 0
Ditto oo SOO/. at 4/. li. per
Cent. 8 9
Commission . . . • • 0 4
S,558 17 (
To Cash paid Thomas Fowler - 41 S :
9,600 0 (
Per Thomas Fowler, Creditor.
Sept. 9lh, 1728.
Bv Brassy's Note .... 1,000 0 Q
By Bank Note, No. 123 - - - 25 0 Q
By Cash received - . ^ . . 33 14 4
1,058 14 i
By Hankey*s Note - . -
By Brassey's ditto - - -
By Ditto, Part of 1,200/. -
. 1,050 0
- 1,000 0
- 550 0
2,600 0
i
For Mr. John Hals,
Benjamin Cole, jun.
Sol. Gen. How came you to make it up i
this manner, since he toid yon that it was ft
Samuel Palmer?
Cole. Yes, Sir, he did so ; but we alwij
mention also the name of the person that comi
to us. This was the particular of the acoom
Sol. Gen. Pray, Mr. Cole, do you remembi
that any body came to enquire for Mr. Romiey
Cole. There was a person came and aski
for him by the name of Fowler ; to the best <
my memory, it was the prisoner at the ba
He came and asked Mr. Hals, if he had as
thing to do in South Sea bonds.
Sol. Gen. Was this Mr. Hales that aski
him this question ? — Cole, Yes, Sir.
Then Mr. Lightfoot^ a porter, was calk
and sworn.
Sol. Gen. Do you remember. Sir, any tin
in September last, that you were sent to H
Hals'»office to inquire for Mr. Thomas Fowlci
Lishtfoot. Yes, Sir.
Sol. Gen. When ?
Lightfoot. September the 9th.
&J. Gen. What day of the week wu it f
Lightfooi. Monday.
Sol. Gen. Who sent you ?
Lifhtfoot. Mr. William Hales.
Sol. Gen. Is that the gfentleman ?
Lightfoot. Yes, Sir.
5o/. Gen. What was the message that I
sent you on ?
Lightfoot. He sent me to inquire lor U
Thomas Fowler, and to tell him that the ga
tienum wanted him aa soon as he ooukl di
patch his businc8S| feo •oont immediatety awi
with m« to him*
J9S] Jbr a Mitdenueaor.
U Om. DM you Ma an; boil; at Hab'a
taHMMrcdlbenamer Shen bim Mr. Rum-
■j: »sthattb*pn«HF
Sal. 6<a. Did he come nilh yon ?
hfktfoot. Yea, Bir, he cbdh: mtb mc di-
Wlj M the pia^a under the Royal Ex*
id. Gn. Whom did he dmcC there ?
iMtMit. Mr. Utie*.
&i ficB. Yon had knoirn Hr. Ilalei be-
^t, W you DUL ;
lifUjaat. Yea, Sir, fur 90 yeara : I knew
Ua when be iraa partner with lir Siephen
JW. Gna. And are yon anre that that ma
te jmwog man that aniwsid to Uie name of
fa^f— iAjA(/«K. Y«,Sir.
■r. Btimphr*g$ called and iwom.
SU. GcM. Let hiiD aee tbe note. Mr. Hum.
|lnyi^ look upoti that note ; have you aeeo
iWh Drte b«rnre ? — Rumphrtyi. Yei|Sir.
ill. Cm. Upon what occasion f
fi^^Arryi. By diredinn Troni Mr. lloare,
I WHUorecctTe it September the 9th.
ttLGen. Wbiiher did you carry Jtr
^mphrt^t. To Mr. GibMn's hojsEt. Iliii
■AiBBM bring at home, I led it there, de-
■idlbBt the money ahould be Icfl vrilL Mr.
■nskld, one of the tellera at the Bank, to be
(hMdlben to Mr. Hoare'i account. I went
ikM ane o'clock to tee if the money iraa left
Aan; floding that it Trasnot, 1 went to Mr.
QAHa'a. The caahier wa« at dinner. I got
aNH ^ for him, and left word that I should
Whdi in a quarter of an hour. I went to
IbrHoTal Exchange, where Mr. Htiare met
■c. fre went to sir. Brauey'i afterwards.
We itopped ihe payment of the two Bauk-
BMt, whirh wp found there had been delivered
aat. I bad l-eeii returoed not abore ten mi-
■Blca. beliire we had au account that a peraoii
ni vioiiped with the two nolei.
Sill Otn, What ia your busineiar
Haai^Vcy). It ia mv bufineai to go with
Itr l\-i4re'i, aoiea into the city.
M. (rra. Wbeo you came the aecood time
k Mr. Gibwin'a, what anawcr had you ?
B^mpiitjft. None, but that the cashier waa
1^ >>! diuner.
Sol. Gen. Who wh tbe person that you
left iliF Dole with?
Eimplirtgi I do not know the geatleman's
Btae; ihrre weiK three of ihrm there, who
*ac -^rtauti lo Mr. Gibaon. One of them
uluri, Blifre it ahould be left? I tliereupan
iwnl.^Ir. Bromfield, onsof theihe tellera of
Atfiaak.
Ur. Cramlingtim called and sworn.
SU. Gat. Do you remember that you erer
Ma that note before 1
Cran'ia^ton. Yea, Air.
U. (ien. When, and opon what occasion F
CrtrntiMgln. Ttiia note was bronght to Mr.
VOL. X\ II.
A. D. 1726. [lU
Gibann*s office Sept. 9th by Mr. Hamphrcra,
an cgcot or out~teller to Mr. Hoarc. ila
deaireil, that when Mr. Fhilli|u(.Mr. Gibson's
cashier) came in, lie wonid leore a note or
money fur the same with Mr. BromfieM It tbe
Bank.
SnLGai. WhatbecameofitF
Cramlington. 1 put it into Mr Phillipa'aseal
between tbe banisters, for him la see when ha
Sal. Gfit. Are yon concerned or employed
for Mr. Gibson about book-keepingr
Cramihglon. No, Sir.
Mr. I'hillipi called and sworn.
All. Gen. Lnok on that note, Sir: Hark
you CTcr seen it biitbre ?
FhiUip: Yes, Sir, on Monday tbe 9ih of
September laat. 1 happened to be at tha
Bank ; and on my return from thence, which
waii about twelve o'l^lock, Hr, Ilarwood, one of
Ihe clerks Id our odicc, lo!d me, that Ur.
Humphreys (Mr. Hoare's c^rvanl) had been
therewith a note fur 6,1-00/. and that I not
beinjr nt home, he hail left it wiin Hr. Cram-
lingluii, desiriiiic that when 1 returned 1 would .
leave a money .ticket for it with Mr, BromlieM,
one of the tellers ol'lho Bank, for Humphreye.
1 axkcd him, where was the note? Hsaud,
that it waa' left with Mr. rramlingtoi). I
opened my seat door, and saw tbe'.noie there.
I was very much surprised, it being wrote by
a straD^e hand; and hnnwiug,by many ypsn
experience, Ibnt Air. Gibson never signed any
promissory nutes without writing the wbofe
notes. I observed a difference in the note, that
(he last words, " For myself and [lartnera,"
were wrote with a nearer resemblance to hi*
hand ihau the other pLirt of the note. I ob-
served that this note was dated the STth of
Anguht, and that he went to tbe Bath uii ihe
astb : 1 hod ihc honour lo ntltnd him several
days. He concluded his businfiis relvUnK la
the office on the 3Glh : On the !)7lh be did
nolbinij^of that business, but prettared for hii
janmey. I endeavoureil to recnllect, whether
lie hud any transaclions then with any George
Watson, towliom itwasmadepayuljlc. I could
not remember thai he hiid, nar did I remember
that t liad ever before heard of Ihe name, nor
liad I any directions from any of my masters,
that there was any such note stood out. I ob-
served also Ihat there was a diflerencc between
Ihe stile of this note and Mr. Gibsnn's; Ha
always writetl), in n strniglil lioe, " For my-
si-lf ttoil Co. Tfiii. Gibson," never " Partners."
And then aatulhe "value recavtd," be never
uficti) these wonls. I earned it lo Hr. Har-
wood, whom Mr. Hiimiihreys spoke to. I
told him, Ihat I did not lilce it, it being written
iu a strange hand ; 1 would iMtt thernbre lake
notice of II. We observed lliat there was iba
f and r, in " For myself and |iartneni," wrote
in a, different hand. 1 thougtil that there
might he some wickedness at the bottom ; I
went therefnre myself iiilaMr. Boetli's nifiee ;
and be and Mr. rhip;i(.'S being ihcrc, I desired
195] 2 GEORGE 11.
II r. Plilppps to look into the books, And see
whether one Mv. Watson had credit for such
a sum. Not tinding^ ttixy such thing, I then
desired tbein to look into the kaleudars of the
ledj^ers. Tliey looked, and saw that there
was no such name there, i said then to Mr.
Booth, I have a note for 6.400/. which I do not
like, and will not pay, without enquirini^ into
it, and acquainting Mr. Jac<mib (nlr. Jacomb
was then aoove stairs, which 1 knew not). I told
Mr. Booth tlie circumstances which made me
suspect a forgery ; Ftfh ! fsaid he) this is a
Tiilainy, a for^rv; this looks liKC one of
Hales'ii tricks. I wailed for Mr. Jacomb's
coming down ; f said to him, Sir, here is a
note for 6,400/. whidi I believe to be for^l.
It is (said Mr. Jacomb^ very plain ; here is a
rasure on a frank. (Mr. Booth having recol-
lected that Mr. Hales some time berore had
two franks from him, one of which he now ans-
pected to be thus abused, acquainted Mr.
Jacomb therewith.) He enquired where we
had it ? We told him, of Mr. Hampbreyt,
Mr. Hoare*8 servant. He hereupon took me
out with him. We went to the fiaidc. I sUid
in the outer office, whilst he went in and ao-
Snabted the directors, that such a thing had
appened. Mr. Bromfidd was sent ibrt and
•zamined, what the reason was of this direc-
tion, 4hat it should be left with him ? Urn said,
lia oould give no reason, but that Mr. Hoare's
man used to transact affairs with him ; Mr.
Jacomb took the note to Mr. IIoftre*S| and I
went to dinner.
Sol, Oca. Is it not usual for Mr. Gibson -to
€nter notes in the book when he makes them
out, and give you notice of them P
FhiUJDt. Yes, 8ir.
Sol. Gen. Sir, k>ok on the Pand r, and tell
OS what you think of them ?
Phillips. This is certainly Mr. Gibson's F,
the o seems thrust in irregularly, two e*B
€rssed, and then follows <« Myself and partners."
Soi. Gen, You have seen liis franks ; doth
4ie make such a distance between tlie F and
the r ? Cast your eye again on it, and see whe-
ther tha distance between the F and r be such
■s is usual in his franking.
FkiUipi, Much as osual, for 1 have com-
pared it with some franks, aud they are there
at the same distance : but 1 observe the o is
not of the same letter, but crowded in irregu-
larlv : And the o is of a blacker ink.
Sol. Gen. Please, S^r, to k)ok on the be-
ginning <rf the m : What observations do you
make on that ?
FhiUipe. There is the stroke before the first
minini of the m that seems of lighter ink.
Sol. Gen. What do you make of that ?
FkUlips. It seems to me to be the tail or
4illtnofthee.
Mr. Maddox called and sworn.
SoL Gen. I think, Mr. Maddox, you belong
10 the Bank f •^Maddox. Yes, Sir.
SoL Gen. "Proy^ Sir, will you give ns an
■coounty whether any notice was givon you to
•top no/ Bank- Wis r
Trial of William HaU$9
[196
Madiai. Mr. Brassey, with Mr. Hum-
phreys, (Mr. Hoare's man) came to the Bank to
desire me to stop five not^, with the nnmbcn,
dates, and names. I looked and saw that
tliree of them of 350/. were already pud. I
took the numbers of those not paid, and gavt
directions to all the tellers, that tne minnte any
brought any of them, they should give mt
notice. In a little time after I was gone vp^ I
was called down again. Pewtress (one «f
them) came to me, and told me that two hun-
dred pound notes were brought and demandedt
I asked him, who brought them ? He told ms^
that person (Rumsey). I bid him bring a em-
atable, and not come back again till ne hid
brought one. When lie had brought OM^ I
charged him with him. 1 asked,him, where he
had those notes ? He would not tell me whfie
he had them, nor who he vras, but was vm
obstinate. One of the officers of the Bank saio,
that he knew him, that his name vras Rums^,
that he belonged to the Eagle galley. He
asked me to let him write a letter ; I let bun,
but would myself appoint the messenger. 'Hi
wrote a letter, signed it Thomas Fowler, aoA
directed it to Blr. at Robin's oofliBe^
house. I called some officers of the Bank,
and directed them to go there with the eon-
stable, and see what suspicions person wis
there. They went into the coffee-house, and
enquired of the master of the honsc what com-
pany was there. He said there were only thiet
neighbours, and a fourth person whom he dM
not know. Whereupon one oftheoffioentf
the Bank said, I know that person ; that is Blir.
Hales. They went and seized him. As tiuy
brouffht him mto the Bank, Ramsey said, thtt
is the person that F had the notes of; and would
fain have spoke with him. I kept them apart,
carried the one up stairs kept the other bdow.
They searched Ilumsey, found about him 60/.
and ^L in different bags, and two notes were
slopped below, before they went up to Mr.
Hales. They found upon him above stairs
thirty -six South- Sea and India bonds, a bill of
fiarcels tor some of thcui from Mr. Hals, five
Kindred and odd pounds in money, a note of
Mr. Brassey 's, and Mr. Sbales's note.
SoL Gen, What account did Uumsey give
of the money found upon hirol'*
Maddox. Thirty ti^e pounds and odd money
he said wert his ovvu wage!s». There was about
60/. besides, which he said was Mr. Hales's.
SoL Gen. What notes had I^Ir, Huies about
liini ?
Maddor, He had a note of Mr. Brassey 's of
680/. the remainder of the 1,100/. note; a
note of Mr. Shaleb^s of 12U/. A note of Mr.
Thrupp's he had received, and had procured
the money for il, as he owned when ne came
upon his exiuniuution.
Sol. Gen, W|s bis examination iu writing or
net?
Maddox, It was taken before sir Edwiid
Bellamy. 1 cannot say whether it^as in
writing or not.
Soi, Gen. Go. on, and give us an
1 - " 1 Jar a MiaJtrntanor.
wtu Mr. fifties niil when examined at the
BiriE, «poB making up tbe tccouot of wtiat
wwUMi fVooiliiui.
MmUti. It wanleil about 4 or SCKH. of the
AiUOt. Mr. Bate* bariiif^ tb>t day (as he mid)
nii^Hil two GaM- India bonds, which hv bad
fiMiai with Mr. Braaier i anil had ahn taken
sfaaMasf Mr. Thrunp\ for 4O0/. which he
iai Jimnalei with Air. Sbalc*. Amnng^the
flfMf*atwer« found upon Mr. Rales, there
■MMKCOHOi of the psrlicutar produce oflbe
UCna. fThatdlilMr. Ralessay."
iidier. He owned that he cniiiloyed
tmamn ; bM nid, that be liimself was em-
Blmiby one Samuel Palmer, a pcnon whom
MM hn» acquainted with for «ame moutha,
*aJ (kai (fab nolo na« left bv liim wiih him to
■nort in aomething that wnuld tui n to account.
Sat CtM. Was tb«re any noijce Ihea takeo
d B>mai'y '• going by a tham name ?
ilaridw. I remeajiierDoIlhat.
&1. G(s. Was there any one ihat laid Mr.
BbIm,11mI he was a laan of figures, and de-
mtk htm iherdbn; la give a more particular
Ibddai- Yn, Mr. nrosea Raper.
im. Pagt, U it not eoough that Mr. Hates
ktoidr owned that what be bud wag the pro-
teaf ih« 6,400f. note? Did not )tuni«ey
■Maf* all tkia f And came be not from hiin
H Ai B»iik f Hath he nut owned it?
r. That was one of llie notes found
Hale..
I •<?
inL Pagf- Dad you any ditcourae with
Um abHxl lite import of it ?
J-
No, my lord. Thii paper,
(uuod in lh« pocket of Air. Hales, con-
a particular ae«uuni of the produce of
IktMOOl. note, and d lUtle more.
IW t«pci- read :
Om at Mr. Henry Iloare's fur -1,100'.
mUelotir John Hynde Couon.
maafTOJ. payable to James Morelon, Mq.
Ow«r i.000l. nf Mr. Nathaniel Braisey'a.
Baok-DoUi, N". 4lQ, for 1,000/.
413, for J.OOO/,
414, for l,90or.
415, fur 251.
MM. rtoeiiad in Gold.
Alt Ota. In caae of forgery, every cir-
^■MMtce b oorroborating of the fact, and
<^&dutm tUi was proper to be laid bvfbre
fcjory.
ImL Page. Whoae writing ia lhat paper?
iladiLu. I bvliere it (o be his : I kuetv bitn
Vboi a ffoldsnitli.
iay Darmtll. Mr. Maddox, I deiire to aak
)•• aaK qncMion. We bare a Tery good opi-
iMaffoo : I'ray, do you not know oneNi-
kMl PalBMr ? iJiid you never any iianvan-
<iM in year booka between Mr. Hnlei nnd
fc»Mri Pat»«r, with relation lo a lO.OOOJ.
1>. Nl^ H
A.D. 1728. [198
Serj. Darnell. Nor have yon narer heard
of him i*
Maddot. No, only by the paper found on
Mr. Hales.
Serj. Darnell. Did not the defendant Mr,
Ralei brin|f ynu a draught from Mr. Jacomb
upon a particular occasion, payable lo DymerF
Maddar. 1 cannot remenber this. Wo
neier bad any accoani, tliat I know uf, witk
Pahiier.
Motel Raper, esq. bhotd.
Atf. Otn. Mr. Raper, will you look on (hat
Eaper P Hare you aeen it before f Do you
now npon wbaioccaaioa it wsf wrote, at)<f bjr
whom ?
Rapcr. I waa at the Bank the Sth of Sep-
tember last. Alderman Bellamv was lh«ri
examining Mr. William Hslea : be was then
giriog an account of the produce of that ante
of 6,4001. of Mr. Oibion's. He was a lon^
time before he could cast it up. He itceiiieHi
not much concerned. I said to him, I wander
that you, who ere a man of figures, should be
ao much at a loss : you wsnt about 4001. Ha
at ten^h mentioned a note of one ThruppV.
They aiked him, where he had that nat«?
He said, of one Palmer of Mansel- street.
All. Gen. Did you aee hiui wrilethal note f
Haper. I saw him sum up that, as the.[iro-
duce of the 6,400/. note.
Alt. Gen. Do yon remember tliat iLe quei-
tion was asked hiiu, why Rum&ey wcat l>y the
name of Fowler ?
Raptr. I know no reason that he gave. Ha
was asked the question several limes, but gave
All. Gen. The evidence, my lord, hath been
so extreme long, and every part so well con-
nected, that 1 shall nut trauble your lordsliip
with any observations tliercupon. Ifiherelis
occasion given by the reply, youi lordship will
then give us leave.
Serj. Darnell. My lord, and genlleroen of
the jury ; 1 am couniel in ihi? cnte for Mr.
Hales. And indeed, acoonliitg tn the misre-
tresentation that they have laid him under,
e is a very unfortuoale peraon. And really
they have given a great deal to lead into a sus-
picion of the tniih of what he is chargeil
with ; but we think a good deal of it h owing
to the misfortune he lay under. Riling; been
a bankrupt many years, and not having ob-
tained a certificate, it was therelure impos-
sible for him to carry on any thiog in his own
name; therefore, in the whole course of hia
traffic fnr many years, he hath been forced to
use tictitious names, and thereby conceal all
receipts and payments. And the conseqoence
of his doing otherwise is very obtious. Till
he hath obtained a cerlitii.-ate, whulanevcr he
received in his own name would br lubject to
the commissioners. Tberelore (aocunling to
my instrnciiooi) Mr, Hahs hath <.-on>'''aUd
his dealings. I am intlmctcd, thai he had
couuderabic dealings tvith one Kauiucl I'alaiar,
1993 SS GEORGE IT.
and that he was indebted to Mr. Hales Id the
sum mentioned ; and bavinfir had great traos-
actlons for many thoosanib of pounds, they
came to a balance of the account, and Mr.
Pahner [;a?c him this note in payment. It is
difficult tor us to dear thincrs in such affairs
as require privacy: bnt it appears, tliat be
bath transactcHl great affairs. He hath books,
thereby it appeareth that he bath traded for
upwards of 300,000/. and that be bath traded
ivith this Samuel Palmer for upwards of
10,000/. To prove that this is not a forced
note, will be extremely difficult ; and I think
that it matters not any thinu^ to Mr. Hales,
whether it be so or not. If it lie so, if this
note came from Mr. Palmer to Mr. Hales, the
forgery falls not upon Mr. Hales. The only
thing for us to establish is, that it came from
Mr. Palmer to Mr. Hales. They own, tliat
he said, when the thing was recent, that he
had it from Palmer. It happens (1 aajipose
lirom a certaintr that the note was a iorged
note) that Mr. Aimer is gone out of the king-
dom. It is impossible therefore to produce
him ; and if he was here, he oould not be a
witness. And, if my instmctiona are true,
that I^almer is gone, it leaves Mr. Hales
without the assistance of Palmer. Taking it
lor granted that he hath forged the note, we
submit it that Mr. Hales cannot be guilty of
the forgery. — Another part of the indict?
nent is, that he hath published this note,
knowing it to be forged. If he received it in
satisfactJDn of a debt or demand that he had
upon Palmer, that cxcuseth him. Mr. Palmer
being gone, it is only possible tor us, first, to
establish Mr. Hales's character, then shew
tliat he is a ^at dealer, and produce his
books, in which these thing^s are entered.
There are several transactions therein, some
many vears ago, some later, that will be
Terinetlby witnesses. If there be such trans-
actions which we can verify, we leave it to the
Court how far that will avail. Under these
ciroamstances we beg leave to submit it to
your lordbhip.
Serj. Bajfnes, My lord, and gentlemen of the
jury ; I am cooumI on the same side. The
first thing that lies under consideration is, whe-
ther this note was forged by Mr. Hales? That
it was a forgery, tiiey have giveu strong evi-
dence; but the only question is, first, Whether
Mr. Hales did forge it? In the next place,
whether he publisiicd it, knowing it to be
forged ? These are the two charges laid against
him in the indictment. We hope, that uiion
the evidence we shall give, you will think him
clear of what is charged. It is well known, that
he hath dealt for as great sums as most in
Lombard -street : he hail the misfortune af)er-
wards to fail ; therefore be was obli^red to act
in a different way from others. We shall shew
that Mr. Gibson himself gave him such credit,
that he trusted him witli ^eat sums of money,
and with receiving rents m Kent. For us to
prove a negative, that he did not furge tfaia
ima^ caaaot be bnt bj riw^nnHaBflM, lo
Trial ^WiUiam Hales,
[fee
order to charge ns, they haw gone a grnl
way with ciroumstanoes ; and the question isj
what validity these circumstanoes will liata
with you ? They lay a stress upon this, that ha
Sve directions to fuimsey to tralwact theae af«
rs, to change his cloaths, his wig, and to ^
on another hat As to that, that will dcocad a
great deal upon the credit of Rnmacy'a cvi«
dence which he gives. Mr. Bnmsey appiaii
to be partieeps criminis : therefore, thoi^ i
cannot say but this evidence is le^, yet iti^
fects his character and credit: it is notaoch'aa
if he was an indifferent person . As lo the wig,
they made a great noise, as if it waa bowll
with a design to impose on persons in tfaal»
guise. We shall shew that it waa not, boCviik
another design. Mr. Hales and Rooiaej bai
an intention, before Monday, to go iato tha
country. He himself saith, that be only M
the finO light wig which he bad upon hia naad.
It was very proper at that time of the JMI^
that he should have another wig to travel ia.
Therefore it seems probable, that it waa bongbt
with that view, and not to impose upoo per-
sons; since that could not make an alteralM
in his cooatenance. As to his acting iindat a
different name, that seems upon this acooont ;
Mr. Hales had the misfortune to have a eon-
mission of bankni|>tcy awarded agaiast Um t
and after long soliciting for a cxrtifieate, "*''
not get it: therefore, although be Iran
great affdrs, all the sunra which he
ciated were forced to be under feigned and
rowed names; because if his creditora '
that he had such credit, and negociated
affairs, they would be the harder npoa Ui
Therefore there was such a direction givMi
that Mr. Hales might not be known to be eoa-
cemedinsuch an affair.— It is incumbent apaa
us, first, to give an account how we canae bj
thtftnote: there was one Samuel Palmer in-
debted to Mr. Hales between 6 and 7,000i. ; be
came to him, offered this note as a security,
that he might pay himself upon receiving tkia
money ; thereupon Mr. Hales very inaomtlj
took the note, not questioning its goodaass.
Mr. Gibson being a man very well known, Mr.
Hales knew that the signing was his hand,
thouqfh the body of the note was not \«ritten bj
him ; and he miglit be easily imposed upon,
and take this as a good note. No wonder that
it should be thought so. Thoutzh Mr. Poltock
suspected this note, because it was not written
by Mr. Gibson's own band ; yet it is plaia, thai
at Mr. Hoare's shop, Mr. Turner made aa
scruple at all to exchange this note, and giva
other notes for it Therefore, though they saw
that this note was written on a different piece
of paper from what a note of such a value used
to be, it is plain that Mr. Turner did not think
this of so much weight. No wonder, theea-
fore, that Mr. Hales sboulil be so imposed ea«
The next part of the convitleratiou is, Wlictker
he published this note, knowing it to be forgeAf
For otherwiae it is not criminal. Thtiuwa
the indictment runs, *' Knowing it to be foil-
ed." NoW| in case that we prove this fintpart
IxipetUalthen'it-
np M, tlia ulhcr part will fall
iti, knowini; il tn l>e funfcil. In pub-
^ nir lardsbip.
t^ in'iIicUucDl my lord, rani, tliRl lie, vi el
w«u. ra. * «efbii M ti[[um iieiiuFnilliiM,*
bil«4lhi* u*te. Nnw, my lord, it a nul pre-
^M«M he foTgeil the name of Mr. Gibwm ;
^ Mi fciifiiii , llioagh I do not cootrovert that
kckricntisntFr my Dtme ta guilty of for;-
^ ii|ikitb*ile note, y«l ool ■ Terbii et ligari*
'^^uIhh ;* tlial 19, forging ilie whole note.
Iknfot being charged berewilh, and lliey
^■■inff ilul li* dkl write LUe iiaii;ii I'bomas
^M. Fft. In ilie name in Ibe indicttneoi t
Jmi. B^*a. Vci, Toy lord.
Jml Pmgt. Now I'liomnK Gibson n agrpcd
k bkilfaekaarfuf Mr. Gibon, but not to ibal
I M»
I bq. fi»rM)- No, ray lord, I admitted that,
I iiiMiBf ibeobjeciioii. I Mid, llial he Ibat
I vntmmiwt my name i« guilty of tbrging such
t IMHi bal noi ' in lerhis el tignris seqiiCDli-
I 'b*l' b« ■■ fui guilty of forging Ibe name of
n^HB (iibMM). I'bcy boTe tokeo upon Ihetn
to fa thai thia nota was ' verbis et figurii je-
■'MMibui;' thrn aller tbe body of tbe noK
M«ab Thotuoa Oibavn. Now,ii>y lord, we
Mifattd tlM ia uot fore^i. Tfaotigh tbe
I MMBc* b4 the note is nul Mr. Gibson's haiid-
Iwiilf t yet tlu^ <"*», on Itie otber hand, that
A* w«e n Ibe band-writing of Mr. Gibson,
H 1^ it >p(ieara tery plainly, that we hare not
inrf llin DOIc ' verbis <!( nguris aeqiieAtihua.'
Jm. Faff, (trolher, dn you rely upon this
"" ' »? If you do, I will yi»e you my opi.
I wbcn tbe whole t» liiiiibed.
Mr. Crammer railed and sworn.
Dai^ull. Kr, are yoa Br^iinioted with
•n.iW.1
■r.#a«i
. - „ >t penonally aoqnainled
rtklM»,dMarh I barelinnwD bini by light
mmy yw«. 1 know nothing at all of bis
9my Durmtll. Do you hnow Hr. Snmuel
hkmrt Dayaubuuw biadealin^i'
e*au. Yn. Hir. aa to Mr. Pulmer. 1 knew
tialMwaobiid. 1 married hi* mollier.
•■ tmofhl up at Ibt) Bait India house,
■M lij l£* I^Mt India coiupany iota IVi
"'"" ' ""■- I many yean.. Not hating tbe
4 that be evpei'ti^, he relumed
It Maycd iu Turkey.
: t'sge. Were you ibere with him f
■" " """ what did you know of
jk ba came home throttgh
: Y<M caoMrt tay that upon oath,
— -^,_ -rtBO* Iherrwiih him, Did you
Wa Ihm hn* ai Laodou ahiT bif rMuni f
■taMbafWiar
A. D. 1728.
Gminger. I know not of any dealia^ni
had io Eogland.
Just. fa^e. DuyMiknowofBoy ImoivoLiOB
between bim and Mr. Halnf
.rahgtr. Hf told inc
list, i'age. That \a uuibing. What subslanca
he off
■rainger. He bad no GiibsUnce atall,for ba
HD inaotrent man.
uRt. Page. How long aince he wa* in
Londuo f
Qrainger. Within a Iwaliemcalh.
Thomaa At/lcs, esq. called and iworn,
Serj. Baynti. You are desired. Sir, to gitc
I account, whether you know the defendant
Hr. Hales, bow many years you hare knuwn
bim, and what is your opioion of his.''
A^let. I baTeknowubiiD twenty, three yean
ind upwards, when partner vrilh sir Mepheti
ZviDce, with whom i keiit a considerable casb
nil that time : I reireived a great many ci(i<
lilies tram Mr. Hales upon Beveral onMsiona.
' r which 1 hare always bad a good opinioH
Serj. Baynfi. AV'bat opinion bad you of hia
character ?
Aylei. I look bim to be of nagoodacha.
passing through his hanils, doting
these years that you ha>e knii'iii him ?
Ayltr. Not any since his failure.
Mr. JLary. I beg a word of the same aide
with the other gentlemen , As Io iheexcepliniv
they have made, il will not be conti-ndeil (I
believe) but that they might have laid it oiher-
They might bate made il a forgery of
e, though ibey had acl i( forth otherwise.
Our objection is, Wl>elher " verbis et ligoria
sequeniibiHi" doth Dot lie it down to the tecnud
part of ibenoleaa well as Ibe rest? Aoolber
thing is this ; lliey have grien nn account of
the publication at London in Mr, Hoarc's shop ;
whelber slrauld not the forgery be lixed in Lon*
don too ?
Jaat. Po^e. If afiirged note-be pidiliibed in
may not Ihe proseculura lay it in
Mr. Lucy. 8lrauld notthe torgery be local as
will as the pitblicaiioD f
Jusi. i'uge. Yes. If ihatvery act "f foreery
had been in Middlesex, it ought to bave been
tritd there: Bpt where there is tio |<ositiv«
and direct proof of the forgery, but the nhola
nriaes from circumsiancei, some in London,
and some in Middlesex, it may be laid in ei-
ther ; or il would be impnasible ifast anir artful
persoD should be convicted of forgery ; il iabul
being aJone when he commit* the tad, and be
is aatc. And ihe ot^eotion will be aa strong hi
one CDtmly as in another ; and then, if your
doctrine be true, be can be tried no where,
whiih sore is noi so. Yon know a telony may
botrittd ill any county wb«ro tlic goods arc
SOSj
S GEORGE II.
Trial of Wiilmm Haiti,
[SOI
found on the prisoner. As to your other objec-
tion, that the indictmeut is for fon;in^ the
whole note, whereas Tho. Oihson is Mr. Gib-
son's own hand- writing ; that is extraordinary.
Did Mr. Gibson put his name to that bill ? No.
Suppose, in a Ic>ss degree, Mr. Gibson had given
his note for a less sum, and Mr. Hales bad only
made it for a greater, would not that have been
a forgery of the whole bill ? You know it is so
•f a bond, bank, or other bill, in every day's
coaimon experience.
Att. Gen. My lord, this was the same case
with Mr. Ward's. There it was adjudged,
that Mr. Ward fmyed a note of the dake of
Buckingham's in that form. There wae no
pretence but that it was (as originally) the
duke of Buckingham's note. This objection
was then made, but it was over-mled, That
the altering a material part was making it en-
tirely another bill.
Serj. Dameli, My lord, we have done with
eur Defence.
Sol. Gen. My lord, as their defence bath
given us no further occasion, we shall not take
up your lordship's time with any reply.
Just. Page. Gentlemen of the Jury, the
prisoner at the bar is indicted for forging a note
of Air. Gibson's of 6,400/. and also tor pub-
lishing this note, knowing it to be forged ;
upon which two things are proper for your
consideration : First, gentlemen, by whom this
note was forged, (for it is agreed to be a forged
note) whether by the prisoner, or if he was
privy to, or concerned in it ? And secondljTf
Whether he us guilty of the publication of it
knowing it to lie forged ? There have been a
great number of witnesses examined ; and I
should have gone over the whole evidence as
it was given, but the counsel for the prisoner
have eased me of that trouble. Forgery it
what couoenis every £nf|[lishman : As paper-
credit is come to that bright it is now m, the
utmost care ought to be taken to preserve that
credit: but still the innocent must not suffer.
As to this note's being forged, which hath
tjken up the most part of the very long time
this cause hatli been trying, the counsel for
tiiG prisoner all agree that it is a forged note ;
and then it will be to no purpose to sum up that
part of the evidence to you« I shall therefore
take notice only of such parts as go to prove
j\lr. Hales himself guilty of this forgery* or of
his publication of it knowing it to be forged.
The two iirbt witnesses were Phifip and
Robert Booth, which may be proper to be
taken notice of by and bye.
The third witness was Rumsey, who hath
gone through this whole matter, and whose
credit hath been supported by others of un-
questionable reputation in every material cir-
cumstance, lie tells you, he was no dealer
in thid kind of business, but a perfect stranger
to it, bred up to the sea: that he hath been
aciiuauited with the prisoner for abont a year,
and from June, till the time this fact_was
committfidy wis ?ery much with him.
note, which was read and shewn to yoa, bean
date the 7th of^September last; and the wboW
management was carried on till the 9th. He
saith, that on the 7th of September, which wie
Saturday, he was at Mr. Hales'i, not thct
knowing that he was to dip his finser for his
in so vne a thing. He says, Mr. Bales only
then told him, that he must go inlo the citv
with him on some bnsiness; and that ha
dress, which was a red waistcoat and breecbs^
were not proper to appear in, in the effsir he
had to employ him in ; and that he had pro-
vided him another (the same which RimiiBj
has now on). That he was not tlionght ik*
poised enough, but was in this new drcsi ea^
ried to Holborn, and there had a Mack penkl
bought for him, and a letter-case with papf
put m, as a man of busiuess '; from whamL
after he was equipped in this disguise, be aal
the prisoner went together to John's ooffbe-
house in Shire-lane. *
You will observe, gentlemen, BIr. Hales, m
Romsey swears, did not then discover to hini
what he was to do ; but it was to come out m
by accident, which was thus : soon after they
came to the oofiee- bouse, a porter with a lettar
directed to Rumsey, came there, which Mh
Hales immediately took from the porter sal
opened; which then appeared to be a oovw
with this note in it, and nothing writ on the
cover but. Lady Harriot Elliot 4,300/. Sur Jeha
Hynde Cotton 2,100/. This, Rumsey say^
he did not understand ; nor did the prisoasr
nve him leave to open the letter, knowing Isi
Ramsey says) he wss unacquainted with M
contents of it. But when BIr. Hales btA
opened the letter, he explained to him whU
the two names and figures meant, and thsa
told him, he would have him go to Bless. Sneis
and Poltock's with this note, and get of thass
two bills, one for lady Harriot Elliott for
4,300/. the other for sir John Hynde Cotton
for S,100/. and told him, that BIr. Snow's shop
was a little without Temple-bar, and did not
so much as trust Rumsey out of his sight, but
went with him over-against the door. Iliim-
sey goes in, where was BIr. Poltock. Tho
first thing BIr. Rumsey does is to produce a
Bank-note of 40/. and 10/. in money, and to
take his note for 50/. and then produces the
note for 6,400/. But BIr. Poltock being a
very careful man, and being now called, says,
he made much the same observations that I
believe you have all made on view of it. Ha
says, it was an odd sort of a bill ; that he never
had any of BIr. Gibson's bills but of his owa
hand-writing ; and that this was writ oo so.
scanty a piece of paper, that he would nol
metldlc with it.
When Rumsey came out of the shop, ho
says he found Mr. Hnles over-against the
door, where he left him, and tells him what
ill success he had had, and gives him back tho
note : whereupon the prisoner and Rumsey go
back to the coffee-house, and there the prisontf
said, he must try elsewhere, and nanied Mr.
Hoare'i, And to give Kumiey credit tbci%
m
Jbr a Mudemianor.
A. D. 172«;
[306
li««ii«l 10 pty in Ml Horn's 70/. that is,
Jk Mtek^iois for 501. and 30{. in rooney,
IrilitriR fism's bUi for 70/. which was
i: teitwtboi acaree light; and CTcry
Mr. Giboan's fery great credit,
rriAo was then in the shop, with-
HHwh this note, takes it, and
two odiers. But Mr. Hales
is Greeted Ramsey not to take the
Mm Is Isdy Harnott Elliott, hot to
'^ iGfOSfcnor or bearer, and the e,100/.
f Johi Hynde Cotton or bearer ; and
flsafinns. And Kuipsey swears,
also shewed him Mr. Hoare's
with him almost to the door.
Samser had soceeeded at Mr.
htsiySfhe found the prisoner wait-
[tf a fialHitall, a small distance from the
1 there he gave the prisoner the 70/.
mi the notes he had reoeired in ex-
Ar Mr. Gibbou's. Rumsey swears,
Hfet nothing, and that tho prisoner
ivbole profit Bot th'is wonid not do
easiness, nor did he rest here.
tU^g therefore b to make the best
rssles, and to manage matters so as
ilililnesd or fonnd ont; in which, gen-
'" \% was certainly right that the notes
IJedufted and changed, divided and
" ' as moch as possible, that no track
■■ht be seen : and for this, Rumsey
f Am he acoordiogly did go with these
the prisoner's direction, from one
i ts another ; first with the 4,S00/.
JiMr. Woodward's, who wouki not
viih it; thence to Mr. Brassey's,
ih cfaaoffed it for four bills, which he
Mr. Hales, who waited for him at a
Ramsey received at Mr. Bras-
, jjljht goUsroith's, in exchange for Mr.
^prt Mitt of 4,900/. were four, viz. one for
for 1,100/. and two for 1,000/.
de payable to one Samuel Palmer,
P^ — same Rumsey was instructed by
Abto take these notes, and was himself
'AMby the prisoner to go by the name of
tMB^vliieh hedid; and the prisoner was
[^*Mil, that he waited about Mr. Bras-
4^Aip during all the time Rumsey was
jny says, that he went and lay at Mr.
gfc that and the next night ; and Mr.
^U him be ready on Monday morning
be had then put on : and accord
WM Monday morning he went with him
^^iewav's coffhe-house, where it was fixed
^ k iboold dispose of these notes, and
^feded by the prisoner to go to Mr. Ai-
■ ^^ Bankey's to make other alterations,
- i^ ^ ^® Maker's for the bonds he had
I %b, who tokl him he had onl v got 1 ,000/.
^i^^ieh Rumsey saj^s he had, and af-
^^ en his goinff again^ Iwd more.
jjwfanco, I rare laid [this] before you, not
"^consideration whether Mr. Gibson's note
^^ifed, for that is admitted ; but how far
Itr. Hales hu been concerned an actor in
this aifoir ; and to put you in mind (if Rumsey
swears true) that he was only the cat's claw,
and a mere tool for Hales, and that Hales
contrived and ordered every thing.
When all this was so succe^nlly carried
through, the prisoner semis Rumsey to the
Bank for moaey, where the matter comes to
be discovered in this manner.
Mr. Humphreys swears, that he being Mr.
Hoare's out-going cleik to carry bills abroad
and receive money, on Monday morning he
went to Mr. Oibeon's with tliis note for 6,400/.
Mr. Gibson, he says, was gone to Bath ; and
it is remarkable that the note is dated on a
day when be transacted no business, and it
was not published till he was gone to Bath.
Mr. Humnhreys says, that he not meeting
with Mr. Gibson's cashier, desired the money
should be paid into the Bank, and letl the note
for that purpose. When Mr. Gibson's cashier,
Mr. Phillips, came home, he says he had the
bill, and looking upon it, saw great reason to
suspect it, and thought it not probable Mr.
Gibron should draw a bill as that was. He
saith, that in all his time he nerer knew Mr.
Gibson sign such a note, nor any note for
money, but of his own hand»writing. The
size of the paper also, he says, confirmed
his suspicion. And sure, gentlemen, paper
must be very dear, that a note for such a sum
should be wrote on so scanty a piece as you
have produced. But the casnier further says,
that looking on the note, he found there
was a manuest alteration in the writing ; Tho«
mas Gibson was Mr. Gibson's hand, but a
rasure appeared above it, and th^ letter o in the
word * For' to be intruded in it, and wrote with
another ink. Yon have all seen the note, and
to me it seems very plain, that the letter o was
not originally written in that phice. And to give
you at least a very probable account, that this
word was at first * Free' and not ' for' and done
by Mr. Hales himself, the first witness (Mr. Phi*
lip Booth) you will remember swears, that the
prisoner some time ago prevailed on him to get
of Mr. Gibson two franks on two letters of Mr.
Hales, directed to Robert Booth, eso. of Bris-
tol, ; and says, that the foldinirs of those letters
were largfe euough to tear off the piece pro-
duced. And Robert Booth, esq. of Bristol,
says, there is no other of that name there,
and that he never received any letter fraoked
by Mr. Gibson. And as things of tliis kind ant
generally made out by ctrcamstances, '^ ^^
no very hard thing to erase the two ^r'i, »r
the o between the F and r, in such aim— ^^^
this has been shewn to you. Ocptfcy-^ ''
Humphreys goes further, and wJ^J^SiLf^
to the Bank about noon that dsy» •^ *'■■*' *•
Mr. Gibson's people had not pai^Jr
at which he says he was P^^f.^.^i ^w j«.*..»..
knowing Mr. Gibson's credit f^' ^ ^^-«
ness of his people; and '**^"* Vi
son's to know what the rt*^
was informed of the ^^^'Jl^^ T «
out thus. Mr. Hoare's t'^^ "•• ■ '" '*
S2071 2 GEORGE 11.
thifM and chati^ed about, at yod bate heardi
aome part of the mooey was at last in Bank-
bilLi, and there Rumsey that Monday morning
receif es 6502. on account of those billa, before
the fraud waa disco? ered. But from what ap-
peared at Mr. Oiboon'a, and the Bankoumbera
of the bills delivered being entered, care waa
takeii to examine the receipt book, to see who
came for any more money on those bills. And
Mr. Maddox tells you, that be having notice
given him, ordered the clerk that paid, when
any body came with those bills, to seem ready
to pay the money, but to delay it till a conalabie
could be fetched : that aoon after Rumaey came
a^in, when a constable was fetched, and cnarged
.with Rumaey. He at first declined to give
any account of his name, or where he had the
note; at length he told Mr. Maddox, that if
they would let him write a letter, he wonM
•end it to the person he had the note from ; and
aceordingly writea a letter to Mr. ■■■■■
(with a blank) at Robin's coffee-house, with
which the constable, with some of the clerks of
the Bank, went immediately to see who waa
there, and found three persons besidca Mr.
Halea. The three were neighbours whom the
coffee-roan knew : Mr. IlaTea was a stranger
to him, hot known to the officers of the Bank.
When he was aeiied, Mr. Rumscy waa exa-
mined again, and owned that that was the very
person who sent him with the bill. U|)on this
Halea waa carried up stairs, examined and
aearcfacd ; and not only one of those bills that
had been received found upon him, but also au
account under Mr. Halea's own band, that ex-
actly tallied with the account Rumsey gave.
And Mr. Maddox says, the prisoner owned the
account to be his; and the notes, bonds,
broker's accoimt of the bonds bought, and ef-
fects found upon him, to be the very produce of
the 6,400/. So that, gentlemen, you will now
take it into yonr consideration, tnat the evi-
dence against the prisoner doth not depend
aingly on the credit of Rumsey, but that he is
aupported by the number of witnesses you have
had, and, iu particular by Mr. Maddox, and
(which cannot err) the account and produce of
the money taken upon him.
Thus, gentlemen, the forgery being admitted,
I hare laid beibre you that part of the evidence
(bat principally affects Mr. Hales, and that goes
to prove him either guilty ef the forgery, or of
the publishing of this note, knowing it to be
forged. As to the tbrgery, gentlemen* of tliia
note, by Mr. Hales, I must leave it to yon upon
the strength of this evidence, wliich has been
▼ery long, and (1 doubt not) fully observed by
Jou ; and that you will give it its just weight,
(ut aa to his publishing it knowing it to be
inged, he bath not given you the leaat oolonr
of evidence to tlie contrary ; and I must tell
yon, wherever a for^red note, or other thing of
that nature, is found in any one's hands, it is in
law a strong evktenoe that he ia the ibrger, un-
leaa he can give some account of it. B«it hare
jo« af8 only told, that he bad it from Palmer ;
WtH0l«Btwwd«fproo£ Mr. Hnlea'a coun-
Trial of mUiam Hales.
E«
sd have indeed offered to yon in bis defence
first, that be is a gentleman, and shall not b
presumed to be guilty of such an uffeuce ; urn
^ntlemen, aliallany other on a bare presump
tion. But here, gentlemen, b great atrengtl
of evidence that afl'ecta him ; I do not kn«
that 1 have met with a stronger proof of th
very fact ; it is not to be expected. They kaiff
also told you, that he was a bankrupt, an
could not get a certificate ; thattliecominMa
of baokmptcy against htin waa about twea^
years ago. They say, that upon thai aoonm
he was forced to make use of other nanM I
his dealings, and sometimes fictitiona oMi.
that he hath traded for upwards of 300,000i
in that time: that Palmer was much emph^
by him, and entrusted in the carrying ai
that trade, and being thereby indebteJ to Mi
Hales in above 7,000/. gave him this note I
part of payment ; which, aa to bis trading s
that manner, I think, is so far from juatifyia
bis character, that it is of itself a crime not mad
leaa than that with which he stands charged
A man that ia a bankrupt, if he aiterwatds hi
comeaable, ouffhtin honour and conscianeai
pay bia just ddots. It is not the first lime
nave known that done ; general Wood waa i
draper, fiiiled, and (laid very little ; hn was
into the army for bread, and proved ao galtai
a man, that he raiaed himself to be a gcnani
He, like a good Chriatian, and a man that dMa
be would be done by, paid hia debto to fk
full ; which if the prisoner had done, it
have given him a much better character,
tlemen, his connsel have told you he ca .
a vast trade for twenty years ; but do thev M
you that his creditors were the better for il^ i
were ever paid one penny? No, geiokmm
they did not ; and therefore I mnat leave ill
you, whether this waa not one continued actfl
fraud to cheat hu creditors ; if so, it will -'^'
the prisoner quite another way than hb o
intended it. And though two or three wit
were called to give evidence of the dealingihl
tween Mr. Hdes and Mr. Palmer, there wi
not one thing proved : so that, gentlemii
there seems very little for you to conaidB
You have a number of concurrent witnoiad
that have given you a full and clear acooont <
this whole transaction ; that this was contrived
managed, and carried on by tlie prisoner in
very extraordinary manner, and which tbei
was not, nor could be any reason for, but I
avoid being detected of the vile crime lie ia nni
charged witli ; nor can there be any doub- bl
the whole produce of this note was for his bl
nefit, the account, bonds, and billa, having bea
found in his pocket.
I roust leave it to you, gentleroen : but nen
was stronger evidence than here is, that Ml
Hales is the author of this. So that I thial
gentlemen, if you believe the evivlence, Ih
charge, one way or other, is lully broiighl I
the priitoaer's dour. If you believe him guikj I
the forgery, you will then find bins gnihyga
nerally of the whole indictment; bnt ifyoa m
not aatiaflnd of that, you will only imi kk
' SV) TnMtqfmiUamtIale$.
Mbf of A* Mfacr part of tba iadMlnwnt ; or,
tym MB ^^ ihu cvUeoof , jou may acquit
IW Jny hcwf witUrawn, «fW a Tei* mi-
iMi Nff, braogfat tbe prwciMr in Guilty of
fa|a( ■» MMc, and of pnMMliing tbe Mine,
hSrafki* Iw biged.
r wu « fMond time indictnl
m «f S8 H. 8, e. 1, for obuinm;
J tolMM. To whiab indicbnent
t plnuUd Not Oiiiliy ; and the
w, in tnMwio*, being oSered ai
A. D. 17S9. [SIO
apen the fbrmer indictment, the ynj brangfat
him in Guilty.
It ii (tated in tbe former edition, that this foil
rennt, taken in ahort-hand by order of Hr.
OibMD, waa dot obtained in time for interdon
near to the other Cases reapeeting Halei, tn
wbieb |>art of the work waa Ikercfbre tobrti-
tnled a abort account of the trial taken fmn
tbe SeanOQ Paper. This full report bring uow
giren in iia proper place, the abridgement from
the Beanoa Paper u omitted. la Uiat abridge-
ment the trial u stated to hare been on De-
cember Mb, 178B.
I7L The Trial of Mr. Wiluah Hales, at tlie Sessions-House ia
the OW-Bailey, before the Lord Chief-Baron Pengelly, Mr.
Justice Reynolds (afterwards Lord Chief-Baron), Sir William
Thompson (afterwards Baron), Serjeant Rabj, and several of
his Majesty's Justices, for Misdemeanors, in forging several
Notes and Indorsements in the Name of Samuel Edward^
esq. and publishing the same, knowing them to be forged :*
3 George II. A. D. 1729-
OjfJrr. OyEZ. All manner of per-
mimt lw*c any thing to do at the muioqi
if Ojeranil Teriiiiocr, held for the city of
Into and c«unly of Sliddlesex, draw neai',
ml pic ronr allciiilancf:.
Ofis. "Van good mtui nf llic city of Lonilnn,
^■■Meil lo a|ipear here tliia day, ii|ion tiie
1W brtneea our •orerngn lord ihe king and
Vatam llalpt, answer to your iiamen, ai
(Mapoa, Sic. — James Tilnier, Samuel Cran-
mr, RicbarU Knollyi, William H<)»anl,
HMnRogcn, Abraham Punier, Robert Ktiap-
hd^lt(•bert Kendal, Jolin llearoe, Thomas
■aaee. TbomH C'nurt, R^ljili Knox, Tlioinu
F«d, CoraeliiH Slason, Jobo I'ote, Richard
Etuncy, Jame* Coulter, Henry i$pi'a;»f,
iMyb }BC:kM>u, Henry Athliural, Jcjtin UeT-
Uft, IVilliain Selwyo, Samuel Craiglicad,
Pitdcrick Ktaunton, Eloikyni, Joliu Jtu-
' Nicbolaa Bemfield, Edward Tay, t>t:ter
htkNie
Gmk.
Ckrk. Yon chall well ami truly try thii
iwt buween our toFerei;;n lord the king and
Vjiam Hatea. Sa help you God.
^Ml Cranmer,
fetad k.noUy«,
Joar.
I'boma* Ford,
Ralph Knox.
Cornel Jul Haton.
John l>nte,
Richard Chauocr,
Jaaepb Jacbion.
1 Cltrk. Oyex. If any man ean inform onr
Borereign lord the king, the king's jnitices, tba
king's attorney, the Iud^i Serjeants, in tbia
rauw betweFn our «otereign lord the king and
» illiam HaJFfl, let him no» come forth.
Attorncfi General. (Sir Philip Yorke, after-
irarilB earl nl' Elarduii^ke). Sly lord, we desire
tlitl those that nere Bummnneil on the jury,
who happvnpd not to be iKnrn, should flay,
Inl vriten Mr, Kiniiersley a aTraigoed there
should bna detect of jury men.
It wnH ordered accordingly by the Court.
Clerk nf Arraigjit. Gentlemen of the Jury,
William Hales viands indicted, by the name of
Willium Hales, late of London, goldsmith, for
that he bein^ a person uf eril fame and conver-
salioD, oiid enileavoiirins Samuel Edwards, esq.
and divers others willingly to defraud, on the
lit of Juntr, in the parish of , had in
his custody a certain note, bearing date May
11, 179tJ, by which note it was supposed, that
Mr. Robert' EJalest dill promise to pay uuta
t This Robert Hales, Mq. Jan. -17, 1138-9,
was tried at the King'a-beiich bar, Westmin-
sler, liy a special jury of the county of Mid-
dlesex, of which lir George Waltcn, koL waa
fon-man, on an iodictoieut tor a misdemeanor,
lor that llie said Robert Hales, esq. wonM ba*S
defrauded Samuel Uilwanls, esq. of BOOf- by
mean* of a note, drawn by the aaid Robert
Hales, esq. lor a/Ml. ])Byable to Samuel Ed-
wards, esq. iir order. TIm paper, on which
the said Note waa drawn, hatinif the n
the said tftuiiBct Edward* 01
livlnck 11
811]
S GEORGE IL
Trial ^WiUiamHatii,
[»«
Samuel Edwards, esq. the full sum of 800/. ;
aiid that, on the same note, with an intent to
defraud, in the parith aforesaid, he did frawtu-
l^Dtly and deceitfully, on the IStb of June,
forge and counterfeit a certain indoraement, to
the grreat dama^^e of the said Samuel EdwardH,
esq. to the breach of his miyesty's |>eace, and
the ill example of his majesty 'a snbjeclfi in like
case offending'.
Mr. Siraniie. May it please your lordship,
and you (rcntlemen of the jury, the |irisouer at
the bar, William Hales, standeth indicted for
forgiu;;, counterfeiting', and publishing an in-
dorsement of Samuel Edwards, esq. on a pro-
missory note. The indictment sets forth, that
the prisoner did endeavour to deceive and de-
fraud Samuel Edwards, esq. and othen bis
majesty *saubjects, having in bis possession a
certain promissory note, under tne hand of
Roltcrt Halc«, lieariug ilate Ma^ 17, 1728, by
which note, this Robert Hales is supposed to
promise to pay to Samuel Edwards, esq. or
order, a certain sumof bOO/. having this note in
his custody, did forge and counterfeit, and
caused to be forged and counterfeited, a certain
indorsement ou the same note, viz.
» Pray pay to for Samuel Edwards."
and having in his custody the said note for
800/. payable to Samuel Edwards, esq. on
which there was so forged an indorsement in
the name of the said Samuel Edwards, esq. did
publish it to be a true indorsement, knowing the
■ame to be so forged and counterfeited. This
is laid to be to the great damage of the said
Samuel Edwards, esq. the brewJi of bis ma-
jesty's peace, and the ill example of bis ma-
jesty's subjects in like case offending. To this
the said defendant hath pleaded, Not Guilty.
only as a frank of a letter to be sent by the
post ; he, the said Robert Hales, having no
dealings i^ilh the said Samuel Edwards. The
trial lasted seven hours, when the^ury brought
bitii in Guilty. But in June following, he
pleaded his majesty's most gracious pardon in
the Court of King's-bench, for the said offence.
Mich. Term [tlie year of the King is omitted],
Geo. 8.
DoMiNts Rkx vert. Robe&tum Hales.
** Mr. Attorney moved for a trial at bar on
an information tiled by him for forgery. Uui
it not being carried on at the expence of the
crown, but of a private prosecutor, the Court
held, that he miwt make out the usual requi-
hites to bring it to the bar : so the motion was
denied. And, at anotlier day, Mr. Attorney
moved, on an authority from the king to pro-
secute, and it was granted as of rigiit to the
king in his own cause. And in HiU set|uen'. it
was tried, and tlie defenilaut convicted. And
in Trin. sequeu*. being called to judgment, be
nrodnced a |iardon, which was allowed ; and
being only for a misdemeanor, be was not pnt
to go to toe bar, or plead it u|>on his knees."
8iniif«i vol. 8, p. 816. Farmer Edition,
Attorney General, Mv lord, and gentlenm
of the jnrv, I am counsel on the aame side, for
my lord the king. The charge against thed^
fendant, William Hales, is for forging an in-
dorsement on a promissory mite, to Samnel
Edwards, oq. for tbe biho of 800/. Tbe boIb
was made in the name of Robert Hales, for
800/., payable to Samuel Edwards, esq. sr
order. And, gentlemen, it will appear, thai
the prisoner hath been iruiltv both of tbigisg
this indorsement, and of publisbing it kMv*
ing it to be so forged. Gentlemen) tnis Samsd
Edwards, esq. bath a considerable empfoyeil
in the Exchequer, and is besides a membsref
the House of Commons, and by that bath the
privilege of sending his poa- letters free. Il
was his misfortune to lite in the neighbourbosA
of Mr. Hales, in Duke-street, in \VestminsMr.
The opportunity for committing of this (rmnd
seems to have kfceu in this manner : Mr. Haka
used frequently to^ apply to Mr. Edwardii
sometimes by binwelf, sometimes by a servant,
for frank covers of letters to send news into thi
oonntry. The gentleman's crood -nature in-
duced 'him to accommodate him according «
his desire with them, supposing that they wen
only designed to send news to his friends in tbi
oountrv. He having possesseil himself si
several pa|iers thus subscribed, it will appcsfi
tliat most probably he made use of one or tbcsi
franks to commit this forgery. The fwrsery ii
an indorsement ou a note of Robert llaki
The note is thizt :
«* Aftfy 17, 1798i
'< I promise to pay to Samuel EdwardSi siq.
or order, eight hundred pounds, three nonlbi
after date, value received.
" Robert Halib.*
The Indorsement is thus :
*' Pray pay the value of this to , Ibi
raloe received. Samuel Edwards,"
1'his indorsement being thus wrote over tbi
name Samuel Edwards, gentlemen, it apjpcsn
by the face of this indorsement, that it isca
off from another writing. There is the tail o
a letter, which manifestly apiienrs. The won
' the ' is wrote with aii abbreviation y. Tba
wilt appear to be a wonl altered from some
thing else. It is difficult to tell whether li
read it fory«, or which looks like tbe troth s
the case, for * ye.' It will appear to be ver
; probable, that the manner of forging was this
having possessed himself of these franks, h
cut off a piece of one of these franks proper In
a promissory note to be wrote on it, whid
would have on the back of it the name of 8a
niuel Edwards. When he had done this, b
did not think proper to write the note hiowel
but got another gentleman to write a proow
sory note ou the back of this paper, payaUol
Samuel Edwards, esq. or order. When tbi
was done, the name Samuel Edwards ssns
for sn indoraement on the note. And the ftlM
ration seems to have been made in tbe iblloM
ing manner: there being tbe word 'ffsa
wrote over the saaei tbtro is Ike Isttsr
say
^r a Mitdemeanor,
A. D. nS!).
[?14
umM m between the f and the r. At to
§i«'ttfter tlie r, the use made of them is
ill : set ef the one of them is drawn the stroke
fcrdM tetter jr, the latter c stands on ooe side,
viMher above the y, and makes y^. Ha? ing
tesMs, U eppeew, that here is a promissory
vis, a the nune of Robert Hales, to 8amuel
M^■i^ een. end here is an indorsement of
■r. Vsaiiel Edwards, by which, by virtue of an
ad rf pafiaineiit^ which makes these notes
aad tlie indorser liable, Mr. Edwards
iaUe 16 the pajrtnent of this note. The
_Jb of this note ts this, to raise monejr
ity and atake the credit of Mr. Edwards
MfMily for this money. Gentlemen, hav-
i^ dsae ihia, he applies to Mr. Harle, to bor-
MWflf Ues a certain sum of 450/. He knew
Mj weH, that hia credit would not serve for
im poraese, he beinf a known bankrupt ; but
Mnd dfeat Mr. Harle would lend bim 450/.
CI te credit of this note. Mr. Harle knew
Mr. Edwards was a gentleman of great
Mfit: il wta a promissory note of 800/. pav-
dHi Is SaoBuel Edwards, esq. and indorsed by
HavEl Gdwards : Mr. Harle made therefore
adsA of advancing the money desired upon
it The anaDner of adrandng this money was
1^ Ihb Harle's making a draught upon his
(PMhMm, Mesa. Caswal and Mount, where
Mr. Brica received this money . Gentlemen,
ttat wiH be evidence to charge this upon Mr.
Uhl Gentlemen, the occasion of disco ver-
iig im leiwy was this, Mr. Hales having
M Cihen op in September last, ou another
iasPWf of forging a note of Mr. Gibson's,
feettA he was convicted last sessions, that
chkI a pretty deal of noise. And, gentle-
■ca,neh as had notes of Mr. Hales for their
wswiiy, were alarmed ; Mr. Haile heard of
liufasMog others, and the thing thus coming
isheiaipured into, it appeared plain Mr. £d-
««4k nd no dealing wiin them, but it was a
faifery and an imposition both upon Mr. Ed-
ewdsand Mr. Harle. We will call the wit-
HHst, and then we apprehend, that the thing
aQ speak for itself, and will appear a plain
lM|cry.
I$cr). Wkiimker. My lord, there are a pretty
■say indictments, and Mr. Attorney hath
•Msd the cause : therefore we shall imme-
wdy caU the witnesses.
noBMti Maddockt sworn.
8n]. Wkiimker. Whom do you live with ?
Uiddncki. Mr. Edwards, ^r.
Unj. Wkitaker. Where duth he live P
MU^oekt, In Dnke-strtet, Westmin!4er.
M. Wkiimker. Where doth Mr. William
Ukver
MBddorkt. Within a few doors over-against
way WkUmlur. Will yon give ns an ac-
•M, whether Mr. Bales hath ever sent for
49 ftaaka to year master f
Msrfdtrto. Yea, 8ir, several times.
I«i. WkiukBr. What nuumer of franks
IhayP
Maddockt. There was alwsyf some super-
scription.
Serj. Whi faker, Vho had them of you ?
Maddocks. His man had them of me. They
were sent bv him to Mr. Hales.
Serj. Whitaker. Will ymi recollect whether
there was ever any request to you, thnt tl.ere
might be some only free without any euper-
scription ?
litaddocks. Yes, Sir ; there was in the be*
ginning of July last.
Serj. Whituker, How many were there of
them?
Maddockt. There were half a dozen.
Serj. Whitaker. What came of them?
Maddockt. I have five of them here. The
other, 1 believe, is torn.
Serj. Whitaker. Did you give them to Mr.
Edwards? — Maddockt. Yes, Sir.
Serj. Whitaker. What answer did he ffivof
Maddockt. He said, when 1 delivered bim
that message, that he never did such a thing ;
and that be would not do them without a so-
perscription.
Seij. Whitaker. Were there any afterwards
sent without a superscription ?
Maddockt. About a week aHer he came
again, and I told him, that my master would-
not do it without a superscription.
Serj. Whitaker. Were they after%vards left P
Maddockt. Thejr were left with 'a young
woman that is now in Court.
Serj. Whitaker. Are those they that were
delivered to you by her ?
Maddockt. Yes, Sir : one is, I believe torn.
Those are the other ^ve.
Mr. Hungerjord. Have you been long ac-
quainte<l with your master's business?
Maddockt. Yes, Sir.
Mr. Hungerjord. Have you ever known it
to be his practice tu gi? e promissory notes ?
Maddockt. No, Sir.
Lord Chief Baron Pcngclly. It i^ proper
you should ^ive an account where Mr. Ed*
wanis lives ?
Maddockt. In Duke- street, Westminster.
' Lord Chief Baron. And where doth Mr.
Hales live?
Maddocks. Within a few doors, almost over*
against Mr. Edwards.
Jjord Chic/ Baron. How long since was it?
Maddockt. I btrliere that it might be three
or four years ago.
Att. Gen. There were (I apprehend yoa
say) several that were franked ?
Maddockt. Yes, Sir, there were frequent] r,
Att. Gen. How long might this continue r
Maddockt. I believe several years. It was
since the time of his living in our neighbour-
hood, which I believe, may be about tnrse or
four years.
Att. Gen. Do yon know of any other bu-
siness transacted between them ?
Maddockt. No, Sir.
Mr. Strange. You sa]^ that these coferi
were brought and left with the maid. Vo
you?
S15] 8 GEORGE II.
Maddocki, Yes, Sir, these are the same that
were left with the maid.
Mr. Strange. You saji yon delivered the
fraoks to Mr. Hales's servant. Do you not ?
Maddocki, Y<:8, Sir.
Mr. Strange, What was his name ?
Maddocki, Robert Hunsdon, Sir.
Mr. StranRc, Did yoa ever deliver any to
him himself r—Mia</£/oc^. No, Sir.
Mr. Lacy, Had the franks that yon deliver-
ed the whole superscription?
Maddocki, Yes, Sir.
Mr. Lacy, They asked you, whether there
were any dealings between your master and
Mr. Hales, besides this of letters. I would en-
quire of votty whether your master acquaints
you with bis dealings with any other persons f
Maddocki. No, Sir.
Anne Clarke sworn.
Sen. Whitaker, Had you a note of direc-
tions for letters to be franl^ by Mr. Edwards?
Clarke, Yes, Sir.
Serj. Whitaker. Who brought it ?
Clarke, Mr. Hale's servant.
8eij. Whitaker. What was his name ?
Clarke, Robert, I think they called him.
Bmrj, Whitaker, Do you know whose writ-
ing it was? — Clarke. Vo, Sir.
Serj. Whitaker, We shall, mv lord, call
another witness to prove that it was Mr. Hales's.
Serj. Whitaker, When was it?
Clarke, 1 cannot say.
Serj. Whitaker, Was it summer or winter?
Clarke. Summer.
Serj. Whitaker, In what month was it ? •
Clarke. I believe that it Was in July last.
Sen. Whitaker. Did you deliver them to
Mr. Edwards f-^Clarke. Yes, Sir.
Serj. Whitaker, What did you say to him,
or he to you ?
Clarke, I told him, that Mr. Hales's servant
had left that paper of directions for the franks
that he had desired ; and said that his master
understood that he would nut frank them without
a superscription, and therefore he had sent that
paper of directions. He said then that be did
not care to frank them, because Mr. Hales had
both a brother and a nephew that were mem-
bers of parliament, and therefore had no need
to apply to him for franks.
Serj. Whitaker. My lord, we shall now
Erove the paper of directions to be Mr. Ilaies's
and- writing.
Mr. Booth sworn.
Serj. Whitaker, Sir, Are vou acquainted
with Mr. William Hales's hand- writing ?
Booth, Yes, Sir.
Serj. Whitaker, Whose wriliug do yon take
that paper of directions to be?
Booth, I verily believe it to be Mr. William
Hales's.
Serj. Whitaker, My lord, there is something
Tery worthy of observation as to these direc-
tions and covers. The covers are very large.
Tht dinctuHii ar« extremely abort, e, g. for
Trial of WiUiam Hales,
[81ft
John Pratt, esq. Bristol. The whole direcCioo
is but one line, which wouM consequently leave
a great deal of room. Another is to Mr. Lsvctt
ofHuntiiMnlon. And there are two to each of
these. The other two to Stephen Mitford^
esq. at Exeter. The man gave an acoonnt of.
six covers sent to be franked ; there are two la
each of these, which very well agree.
Serj. Whitaker, You say. Sir, that thia it Ihi
hand- writing of Mr. William llalea f
Booth. Yes, Sir.
Serj. Whitmker. 1 would ask, whether ilk
common for a person that hath a piumi— y
note to write his name thereon ?
Booth. I know not. Sir, that it is comHNB*
Note of Directions read t
Two to John Pratt, esq. Bristol.
Two to Mr. Levett, Huntingdon.
Two to Stephen Mitford, esq. Exder.
Mr. Hcrr^e sworn.
Serj. Wkitaker, Let the gentlemen of tha
jury see the directions and covers.
Serj. Whitaker. Gentlemen, you wiH slaano
the size of the covers, and the shortneaa of Ihi
directions just fitted for the purpose.
Sen. Whitaker. Mr. Harle, please, Sr, la
take that note in your hand, and give no ■■ ao*
count who you received it from ?
Harle. From Mr. Hales.
Serj. Whitaker. When was it?
Harle, To the best of my remembnuMo it
was Juoe 13th last.
Seij. Whitaker, Will you give us as oeosMt
on what account it was, and what Mr. Haht
said to you when he brought that note ?
Harle, Mr. Hales on the ISth of Juno hH
came to me, and brought me that note firoBi a
gentleman.
Serj. Whitaker, Where were you?
Harle, To the best of my remembraneo, at
Baker's coffee-house in Exchange Alley. Bo
desired to borrow of me 450/. upon the cr^it
of that note ; I accordingly made him a
draught on Mess. Caswal and Mount, with
whom I left my cash, fur that sum ; for a aoai!
rit^ for which he left that note, and he pro*
mised that he would pay it in a few days.
Serj. Whitaker, Did he take any particolio
notice of the indorsement?
Harle. Not much J Sir.
Serj. Whitaker. Was it then indorsed ?
Harle. Yes, Sir, I am sure it was ; for I
was desiretl to lend the money on a note so in*
dorse^l-
Serj. Whitaker, The note then, upon this
occasion, was left in your hands alter that it
was so indorsed, Was it uot ?
Harle. Yes, Sir.
Serj. Whitaker. U|>on what occasion did ife
happen to be suspected or discovered ? Did yoa
pay it yourself, or 3^ our golusmith ?
Harle, Mess. Caswaland Mount, on wl
I made a druuirlit.
Sen. Whiiakcn HoTO you that dnnglftf
HarU. Yea, Sir.
«
Jw a MUdaneoMor.
MWHi^er. It h«Ui been deUtered up,
USr-Jfarfe. Yci»8ir,aiMlcaiieeJled.
44Kiibr. Ob wlmi occuioa ?
[ «Ul Wkn I Mllle my ftceouuU with my
illdwap ny Doiet.
ittmgt. YMiwcrafoiiigtogifeiisan
■Mtov yto aune to ratpcct thw note ?
U Ilhnk it wu on September 9, 1788,
tiMhrhiiifB Alley aU the morniog, toy
IfiVfliig flw thither. At two 1 went
, IpmmL It eeeois there woe a nieeiai^
WlOTMffvaiit fay Mr. William Hales,
JitmfM U my iroldsmith 4S0/.» part ot'
1^
'limf vUeh ho owed me; for be owed
H^Moey on aocority. He weut to
[|B«tptti tbcm thie money, for which he
MiMHnodom that Iw uul paid them to
Im^wmgy upon aeoowit. Goiog then to
^ M Gmn, when 1 came home Mr. Cai-
IM m what had happened. There it
l^tad ihiM bath happened; Mr. WiL
llii^ wilh whom yon baTe transactions,
'b m Ibr forgery. He hath |>aid to us
[W. upon your aecouot, which is at-
* i«r bands. It seetna there was found
•book a memorandum which gave
Isf hie paying that sum to them.
Mkiiahtr. Was this the first occasion
[ isy flion ?'^HarU. Yes, Sir.
. WkiUker. Wlvat did you do upon that ?
JAl I bad naked a gentleman, now
bmt,Maie daya before, knowing bim well
with Mr. Edwards, and the affairs
Eiebcquer, whether be knew Mr.
I band- writing, and whether he knew
bke Mr. Edwards's hand- writing? He
4hMieved that it was. I indeed myself
Mid tbat it was. Afier that Mr. ifales
Vths up (I tbiok that it was the Weilnes-
%t Tburiday after), I went up to the £x-
d^tD that gtntlemau to get biro to go
l||ieio Mr. Edwards. lie went up, but
jftlbrirds was not there. ^Ve then weut into
^hll, where we met with Mr. Kdwanis, who
^Mrito be rery much Mirprised. As to the
^faid be) I know notliiug of it. As to the
H-writiag, be could not |>ositively say whe
^ 11 VM bis own or not ; if (sai«l he) it is
^ittsd, it is made an ill use of. We went
^t'iilely to the coffee-house to enquire after
«ihbert Hales, thence to the Cock- pit,
Jl'lhice to his house ; but met not with
J^l tben left Mr. Wright atui Mr.
''irit. i told them that my buitiness
^nd me to go into the city. They re-
*N to meet Mr. liobert Hales, and enquire
^h« whether it was bis note or not.
L C. BcTOM. Head the note distinctly.
X«te read, " Matf 18, 1728.
** I promise to pay to Samuel Edwards, esq.
* trur, the sum of eight hundred noutids
*i|^ three months after dute, for value re-
^hl. KoBERT Hales.'*
bdofiement, ** Pray pay to the order
of foryc value received.
** ISamuel Edwards."
A. D. 179^ [tlS
Draught read, «* kt. Mess. Caswal and tfoont.
«< June 13, 1798. Pay to Mr. William Hales
or boarer, on demand, four hundred and Afty
pounds. RoBBtT Harlb."
X. C. Baron, Sir, you say that yoo are ae«
qnaintcd with the band-if« riling of ftlr. EdwaMf.
do you not? — Har/<e. No, Sir. ^
Att, Gen, My lord, we beg that the gentle-
men of tlie jury will look upon the indorse*
meut. But before it be put intd their hands, {
would make an observation thereon . It ap-
peareth by the end of the paper that it is cut
off from something else. It is not straight as
it would be naturally, hot seems cut off 0Miqae>'
ly : And there is the tail probaUy of a letter
of the direction of the cover whence we pre-
sume it cut off. Then the wurds, * Pray pay
to the order of,* at a distance from the othc^
words, * for the valoe received.' There is this
material also, that the words * for the valne re*
ceived' are not usual words in an indorsement ;
when the words * value received' are mentioned,
still more unnsnal to put in the word * the'.
But the word ^ free' being there, there must be
some way contrived to nse those letters : An e
is therefore crowded in between the/ and the r :
And tben the y seems to be a much blacker
ink tlian the rest : And then as to the two re*!,
the one of them the y is drawn from, and the
otiier of them stands for the other part of the
contraction.
Serj. Whitaker. liook on it, gentlemen, and
you will find it as mentioned.
Att. Gen, Observe, gentlemen, over it them
is a stroke or hook.
Mr. John Spicer sworn.
Att, Gen. Mr. Spicer, What employ meni
are you in under Mr. Edwards f
Spicer, A clerk, Sir, in the Exchequer.
Att, Gen. How long in that capacity ?
Spicer. About ten years in that capacity:
But in ail I have served him for 24 years.
Att. Gen. Have you known in all that time
any mouey-dcalin^s between Mr. Edwards
and Mr. itobert, or Mr. William Hales ?
Spicer, No, Sir.
Att, Gen, If there had been any, do yoil
think that you bhould have known it?
Spicer, Yes, Sir, I believe that 1 should ; for,
as to affairs of that nature, 1 believe that J know
as much as auy except himself.
Att, Gen. Look upon that note. Do you
take any part of that note to be his hand*
writing?
Spicer. The name is his ; and they I believe
is his. As to the other letters they are so al-
tered that I cannot say. * Value received' is
not his.
Att. Gen, Are you acquainted with his
writing ? — Spicer. Very well, Sir.
Att. Gen. Have you seen him frank letters?
Spicer, Yes, Sir.
Att. Gen. What is his method of franking?
Spicer. • Free Samuel Kduards.*
Att. Qen, Doth he write the word * lire^* *
219J d G£ORG£ II.
Spicpr. YiM,Sir.
Att. Gen, What sort of/ doth he rnhkt?,
' Spker, A sort of double /just such as is
faere.
Att Gen, Do you take the letter o to be his
hand'Writiog?
Spker, It is an altered letter. It was some-
ihing else turned into an o.
Ait, Gen. The r, what is that, doth it not
«ceni to bare been another letter?
Spicer, Yes, it seems altered from another
ktter; but bunglinfflv done.
Serj. Whitaker, We wiU^ my lord, call oueof
Mr. Caswal'a apprentices to prove that th»
^ught hath been complied with.
Mr. George Branthwait^wom.
Serj. Whitdur. Do you look upon that
flight. 00 yoa remember whellier it was
«?er brought to you, and by whom ?
Brant^aU, I beliere it was brought by Mr.
Hales.
Serj. WhUaker. To your
BratUhwaU, Yes, Sir, and it was marked by
8eij. Whitaker. What had he for it ?
Branthwait, He had ofme two notes. One
was for 850/. the other for S90/. which was
470/. and he brought besides this draught two
notes of Wanley's for SO/, which made the
balauce.
Serj. WhUaker, Whom were they payable
to?
Branthwait, One to oue Calthrope, and the
•tber to himself.
£. C, B, You say there were two notes you
ga? e him. Whom was the 250/. note payable
to?
Branthwait. To Mr. William Hales.
L, C. B, And who was the 320/. note made
payable to?
Branthwait. To one Charlton Thrup. He
gave me this draught of Mr. Uarle'tf tor 250/.
and notes of twenty pounds.
X. C. B. Whom did you say the 220/. note
was onade payable to ?
Branthwait. To one Charlton Thrup.
Att. Gen. My lord, we have done with our
evidence.
X. C. B. Well,* what do you say to this ?
5eij. Darnell. I have nothing material in
mine instructions ; therefore, i shall not trou-
ble your lordship.
Mr. Lacjf, 1 take leave to observe, that it
doth appear that no prejuilice is done by this
note. The 450/. borrowed on it hath been re-
paid.
Att. Gen, Mr. Hales owed Mr. Harle uio-
ney upon other accounts, and he had it upon
account: And besides, it is attached in the
S'oldsmith's hands, and it was on the very same
ay that he was taken.
X. C. Baron. Gentlemen of the Jury, this is
an indictment against William Hales, gold-
amitb, for a very great misdemeanour. It is
for fbiging an indorsement on a promuiory
note Ibr 600/. for the chaipog of the pcnon
Trial of WaUamHakB,
indorsing with the payment of this son
tlie publishing of this indorsement as
one, knowing it to be so forged. It is
great offence, a misdemeaooor of the !
nature ; not -only as it afltos particuli
sons, and chai^^es the person whose n
made use of with the pay noent, but as i
stmctive to all commerce : You are tfa
to consider what account the defends
Sive of it. The indictment sets forth tl
efendant bad in iiis custody a certain i
a writing, purportiiigto be a promissor
with the name of Robert Hales; by
note it was supposed, that Robert Halt
mised to pay to Samuel Edwards, esq
order, the sum of 800/. within three
after date. And upon this, the chari^
indictment is, that the defendant, witfa
^tion to charge Mr. Edwards with tl
ment of the money contained in tbia ii
note, and to delraud and deceive hi
others, on the iSth day of June did
and deceitfully forge and counterfeit a
indorsement on thisnote in these Englisl
following: ** i^y psy to the order of
the value received," over the name of
Edwards, as if subscribed to that indors*
and, that knowing the same to be a fur|
counterfeit indorsement, he published tl
in order to deceive several persons, the
subjects, as a real indorsement, as wc
defraud the said Samuel Edwards, esq.
in order to prove this, the counsel ga^
account of the circumstances of the del
the character of Mr. Edwards, the ac
ance between them as neighbours,
shew you the circumstances of the fai
have called several witnesses: Firs
called a servant of Mr. £dwards*s, wh
tiooed that he had lived some coosideral
in Mr. Edwards's service ; during wbi
the defendant, Mr. Hales, hath irequci
several years, sent to Mr. Edwards
franks delivered him in the name of 1
wards, who hath for some years been a i
of parliament, in order to send them
the postage. It appears that this ha
done for several years; and the usui
was, when Mr. Edwards had received
rection of the name of the person, he
wrote the .whole superscription, and tli
scribed to frank it ' Free Samuel Ec
He tells you, that in the beginning of Ji
several covers were brought to him for
made up as you may perceive prett;
The covers were brought orer to Mr. Ei
bouse by a servant ot Mr. Hales*s. T
sage was, that Mr. Hales desired soon
upon these covers, particularly desirii
to be franked without any superscriptic
saith,that these were left in this numi
were all delivered to a servant of Mr. 1
with this desire, that he would on]
thereupon *' Samuel Edwards free :'*
rest might be left to be6lled up by Mr. ]
be thought fit He tdb yoa, thai w
mastor came honei hit maater tunriii
0 M'udemtann.
UmMiniiewholeiupef ,
lo ilo this; anJ
r«m mnaiDnl wilbout frank-
b wiihIiI nut ii(xi>iiim'Hlite
Mr. Bile!, in ihal maiiDer wiili
to kaad. uid Icate llie Test lilniik lur anutiier
|MMUfi<l U|i us lip iliDuelit 111. This OUll
imj pWriilly ilorir; Hr. EilwHrtIa, wlio in h
■bAmm IB husDni, iiii|[|j| well spprtliend
MINSfpi'ituiiily niit(bt Iw liereby girpn (o
MHfw^tf* lliM H might nulbeiii l)ra)>ni*«r
■•■nmul. Tliia, gentlemen, U made luc of
>p«r uf an attempt bv ibe ilelrndanl. to gel
Ntt wrl •■' I'rankt into hit power lo make uie
#li Mcb n MriK>*« as (liii. The next wiineM
iMtbry ulU It Ar>Ke CUrke, who Faith
dMikitlilwiniea semnito Mr. Edwordf,
wrillen Ij Mr.
lat ihii was brought to
of Mr. Edwanit, with a deure tu
' fr«nk» liiiectfd lo cai^h of those
*i> to Mcb ut' tbeoe lliree several
Mite aailb, that it was soniR lime lait
h4 i^ pniiiiKirib
Bi^ m4 M<ih, il,
M^M*. *l>e thintit atwiil July.
te >bm her mtsurr. Mr. Kdn:
Kite SI
(titiog
a bim : and Mr. Kil-
ir accommodaiinff Mr.
tlii-ae persons. The
Ihli; Mr. Hale* (Mid
a nepliew that are
Mi ouh franki
MBIhat iMfrave was ihi
ItflMkbolii a braiher and
•i^wa iif the HiniBv iil tJ»mmnna ; anij
IhniM ha need mil «eud lo me tiir franks,
^« ke vn»y bare Ihein from his own rela-
tWI b* Umrhre declined il at Ihal time.
Itat vera tin ilirectinnt : Two to Mr. Lervll
4 laMiiiirdon, Iwo m Jidin Pratt. va\. at
h»t,lHu to Stephen Mitt'iinl, e«q. at Biiilnl.
takairii. to c^rrobnratt this evidence Uinl
«»Ma nuc rroni the defendant Mr. Hales,
kr.tlMilt It called. He ia aike<l. whether he
•wdl aoqiMiiiled witli the hand-writing of the
M«rfM>l,Ur. Ilaln? Hesailh tbalbeia, and
iH bp •cnljr briiere* that this note Is bis
tori.vntm^. It balh bt«n tririerTed by Mr.
that there veeitiH to have beeii some
tlwfnnn wherein it is wrote being >ery
an opfKirtiinit; lor an alteraiioQ ;
if ibaae directionn a very short, and
«p U oMift but one line on the su-
oaUnUrot tlie cover; ihal there
m a conaldenble space lelt, so
e, MaiDurl Edwards, ivna wrulr,
^■B wuold bate been a sulficient space oi'
na In wnte a note nr any ihintf oter it.
BM b the afaierraiion thai hath been made
^Xlbia no«i- •■' drmlions. Aller this they
fttta Mr. Kiitirii Hifk', who it secretary to
tiwOsM bank, !■> hiirpm In the jiarliculaT
k. Ue wilb, that thii note wn« on the )3lh
'lancUit brau^ht and delivered to bim by
kiMn4a>t Mr. \Vitl>am Hale*. He sailh,
kt he was then d1 Raker's mifiee- bouse in
h*Mfp-alUy : ibut Ibe dufcndUDI, Mr.
■A^ ^nM la hini, «iid produced Ibis very
%tf WWt. payablr to Sniniiel Edwards, mq
~" "■ lubsmbcd Robert >lah>«,
" iidwardt,
A. D. 17S9.
iitd de«ired him lu advance bin i50!. upon llie
credit of that note; Ihal seeing a proinisaorf
Dote njnde payable lo Numiiel Eilwnrda, esq.
-.nit imloneit by the said Sninuel Edwards, esq.
Ilia appeared to him «ii<iioieut seouriiy lu lend
4Si)f. upon ; Ihal tie did tltereupon cnntply
>vilh ilierequnt uf the dufemlaat, Mr. Willinoi
Hales, III ndvsiice bim thaltumi ihatbedr«w
a draught lor i( an Casual and Moant, wbo
settling of his accuootii with bis goldsmiths ;
that at that lime when Ihe defendaut brouKbi
this note to him, this very note woa delivereil
la him, with tbis very indursemeiit Ihal is novr
upon it,
" Tray pay to llie Order of for j«
value r<:cdred Simuei. Edwards."
lie saitb, that he is sure that it was (bus in-
ilcirsnd when il was left with him, he being de-
sired to lend Ihe money on a note si> imlorsed i
Ibat it hath l<een in his cnstody ever since, sn
chat he ia snre iliere hath been no alleralton
made tberean since lliat il itas delivered unin
him. You may n'membrr that he was parti-
GiiUrly asked, are yon sure that il was indnrwd
when il »as delivered you? Hesailb that b*
is sure; and indeed the thing bespeaks itaelf.
' n'hen a note is made payable to a particular
|)efBon.if any other person brings il, every one
expects lliat Ihcrc sbotild b« an initorsement
to inlitle any pertiiin that Is not the very person
to whnm il wni made payable. 1 am there-
fore lure (saiih he) ihal it was so indorsed:
anil Bs Mr. Edtrards was a iierson of rerj
great dealings and considerable sulislance, anil
BO likely to liave sach a note made jnyabla
to hira, I therefore gave credit to this note aa
a sufficient security to reimburse me the ihQt,
i*hiGb 1 advanced thereupon.' This tact ha
tells you was thus transacted at thai time;
and he ia sure that he received it from Ibe dc-
feiidant thus inilorsed, and that the drtendant
hath hail the benefit uf the draught which ha
gave him on the credit ihereol. Mr. Harle
hath ullowed this in settling his account* with
his goldsmith. Upon ibis the nule hath been
read lo sbeir you the purport thereof, and the
indoraemeni thereon. The note is this,
" Wau J3, 1728,
*■ 1 promise lo pay to Samuel Edward*, esq.
or order, the sum of eight hundred pounds,
within llitee tnoutb* after date, for value re-
ceived. " RoaERT HtLEa."
Tlicn upon the back of Ihe m
elben
stbit
Mr. llarle goelb on In the account which be
gives you, and snitli thai Ibis nule was leti ia
his hands in June ; and that ou Sept. V, after,
he was in Ekc ha age- alley aJI the luorniug till
bIhiuI two ; that theie was a message left for
him at Uakci't colTee-hoiite, bat he received jt
8CS]
3 GEQKGfi n.
not there ; that he went honie, and heard that
there was a message left for him hy the de-
fendanc, Mr. Halei, at Baker's coffee- hoasej
that he went out in the afternoon, and had
not a particular account of the message till he
came home. The message was mm Mr.
Hales, that he bad that morning paid to his
goldsmiths Caswal and Mount 45o2. on his ac-
count: Mr. Harle tells you that there was
more money due to him on security. So much
money was then pai<l in discharge of so much,
part or money advanced by him to Mr. Hales,
and It wss the exact sum which had been
advanced on the Idth of June on the credit of
this note. He tells you, that in the erening
Mr. Caswal came U> biro, and told him there
was a melancholy account, that a sad accident
had happened: for Mr. William Hales, the
person tnat had paid them this money on his
account, was taken up for forgery, and this
money was attached in their bands for to pre-
yent bis issuing it out. Mr. Harle tiills yoo,
that this was the first discovery that bo had of
the particular fact, that gave him oecasion to
make the more particular enquiry : he had in-
deed two or three days before sfioke to a ^n-
tlemaa of the Exchequer, one Mr. Wright,
Imd shewed him the indorsement ; and having
tooaesttspicioo, asked him whether lie was ac-
qaauitnl with Mr. Edwards's hand, and whe-
llier be thought that that was his hand- writing ?
Mr. Wright tho«g;|it it was a little odd, uav
joaMbiog di6Ment, but believed thai it was
Mr. Edwanls's hand, aa Mr. Harle himself
also thooght that it was. He saith, that after
Ibat the defendant was apprehended, he went
to Mr. Wright to desire him to go with him,
that they might have from Mr. Edwards more
particular satisfiiction. They went and met
with Mr. Edwards, in Westminster- hall,
shewed him the note, asked him whether he
knew of it, and whether it was hu indorse-
ment? Mr. Eilwards waa very much startled,
end said, that lie never gave any such note,
and knew nothing of it. Mr. Harle asked him
whether the name wss bis liand- writing? He
said that if it was, an ill use waa made of it
Mr. BUwanIs took a copy of it, and kept it
by him. The note hath been read to yoo, and
appears to be a promissory note in the name
of Mr. Robert Hales, for 800/. payable in three
months, to Samuel Edwards, esq. The iudorae-
meot is
** Pray pay to the order of for y«
value reoeived, »Samuel Edwards."
Gentlemen, Ufion the producing and reading of
this note, Mr. Attorney bath made several ob-
servations on the manner of m riting it. You
have bad the inspection of it, and something
very' particular appears to every one's view. It
is by the uounael for the prosecutor supposed,
that this mtie must be formed from part of a
iraok cover signed * Ifree Samuel Edwards,'
Jfree being turned ■ into far ^ value received ;
that there is the Foraainder of anoiher letter.
Awl yen may ehs^iTe erbethcr there is east*
Trial of WiUiam Hales,
▼edge or any thing of that oatvte, thi
h to have been the outside of a sheet
All the edges indeed seem to be so
dean as a paper that is cut. Th(
ment begins, « Pray pay to the ordei
for' then comes y«, and then a laigi
between that and * value received.'
seems pretty extraordinary if any
honestly writing, and had a paper not
before, that they should write in thi
that the word y« should be tacked to
* for,' and put at such a distance froi
reeeived.' * Received' follows * vali
diately in a more plain writing : be
unusual to make use of the word
*- value received ;' but they say it is
nerally * value received.' You ha
stance in the note itself; the conclui
note is * value received :' and I belir
aervation is just ; that it is not so us
* For ye value received.' But the ol
of the counsel was this, that there v
cessity of this in order to aocomm
leuers to the forgery ; as the words
they exactly suited. And, gentlem
is of a paler ink than the or, and thi
thicker, and seem of a deeper ink.
were two m's before, the alteration an
the other letters roust occasion the tb
these letters, and their seeming of
ink. Other letters being to be supc
they^ must of necessity be thicker ai
than the first letters. Here is a ver
sort of an r, and the o seems very
the end of the r is something made
assist to make the upper part of the
doth not stand cleverly. And you
that part which is the head of the
thicker than the other part that mal
y. And then on the side or one si
the y there is a sort of e put. You
how improperly it stands. It is not
rectly over the y, which is the way 8
of writing ' the' short; but it com
bottom ot the head of the y. So tha
men, these are the observations that I
made by the counsel. You have
note, and may observe upon it, wh'
think these observations plain, proper
Upon this occasion, another servai
Edwards is called, one Mr. Spicer.
that he hath been a clerk in the £
above ten years, but in the whole in
wards's service upwards of 30 yeitn
is well acquainteo ivith bis public de;
Krivate transactions in money- matters
e never knew or heard that he had an
dealings with the defendant, which h
he should, if there had been any, being
and acquainted with his muney-dealii
he saith, that as to the name Samuel
be believes it to be Mr. Edwards
hand- writing, being very well acquai
his hand. And he saith, that as I
doTMflMBt, he believes that the / k
Aot the other letters ; that he is aati
< ?atae KOBived' is aoC Mr* Edsmda'
i
tiSj
Jw a Misdemeanor*
A. D. 1729.
[S26
And he nitht that the o aud r he doth not
tike In be Mr. Edwards's hanJ-writiogf, but
w akcffatioD from lonething that Mr. Ed-
wards had wrote before ; that the osual way of
Hr. Edwwde frankiiiff iv * frce^ with a ^ as
ynjfree ; and that the o appears to be made
art tf an altered letter- So Uiat this ia a
fnfet tbscnration, that there is ao alteration,
M ihcjf batiere upon their oaths. He saith,
thUja.kuifirUnffly done; that he apprehends
been mentioned. AVeJI, ano«
called, Mr. George Branth-
t to Mess. Caswal and Mount,
that thia draught was brought to
r bj the defendant himself, becanse
ke kath pot bia mark upon it, as is proper for
BMsas of aoeh deaiings ; that that mark of
Hsl Ibc bottom remmds him that the defSm-
tet hrouglit it. Upon the bringing of this
ti^bf, be bad two notes from this witness
SB aeeount of his master ; one was for S50/.
Ar SSO/. : that came to 470/. : there-
ihe deficiency of this draught was to be
' with another to make up that sum
. Therefbre, he saith, that he brought
df Wanley*s for 30/. which made up the
The note tor 250/. he saith, was
laajable to the defendant himself; and
ite it 990L to one Charlton Throp ; and
ta al tfaia time the draught and Wanley's
era delif ered to him for these notes on
afileal'. Caawal and Mount. T^is is
«it given by them. The defendant
and nis counsel are here. Nothing
is aaid by them in defence, only Mr.
lacy osentioneil that there is no damage done
ky&isDOto. the 450/. borrowed on it being
icpai To this it was replied by Mr. Attor-
SIT. thai the money was paid upon account,
fkin being other monies due to Mr. Harle on
MBsrity; and besides it is attached in Mr.
Hirie't goldsmith's hands, to prevent its being
iMcd out. Gentlemen, you will observe, that
iftlus was a real indorsement, it would be an
Mwrance of pacing the whole debt Who-
Mwer iadoraeih a note, whereof no part is
fH4, is liable to the whole. Therefore the
^oKtioQ is not, whether or not this money was
ptJ' But whether here is not an engagement
tipay the note, which the re -payment of the
y borrowed thoreou is do fence against f
Therefore if the money had been repaid, that
had been no acquitting of the crime. That
will no more discharge a person, than if a
felon should say that he is acquitted because
the goods are restored. The behaviour after-
wards is not a sufficient acquittal of a crime.
And consider when thai was. It was not
before, but upon the Monday, the very day
that he was apprehended. Then the message
was left, and the money paid. You are to
consider, therefoi^, whether this did not arise
from an apprehension and fear of a discoveiV«
in order to clear things as well as he could ?
Gentlemen, as there is sufficient evidence to fix
this upon the defendant, so hath he not proved
how he came by this note. lie bath not called
one witness to shew that he had any money-
dealings with Mr. Edwards, or that he received
it of any other person ; but it is left on the
evidence given by the prosecutor. Therefore,
there can be no doubt in the matter. If a
person is silent to t^ie charge, and cannot five
you any satisfaction as to it, it stands as tuUy
fixed upon him as if any had seen him write
the indorsement. Therefore, gentlemen, you
are to consider, whether any thing appeara to
aflbrd the least presumptiou that this waaa
true indorsement made uy Mr. Edwards, for
value received by him? It is, gentlemen, an
offence of a very heinous nature, and, if not
suppressed, must tend to hiotler all commerce
by bills and paper-credit. If this be suffered
to increase, none can take such a note, unlesa
he goeth to the person himself. It will render
it insecure to carry on commerce by notes or
bills. As to au indorsement of this nature,
though it was not mentioned, it is proper for
roe to take notice, that though the name be
not named, it may be made to any person.
The person, in whose possession it is, can go
and receive the money. So that the indorse-
ment is complete authority tu impower the
person in whose possession the note is, to re*
ceive the money, and likewise to charge the
person that so indorsed it with the ie-imburse«
ment of the money. Therefore, gentlemen,
the crime and offence seems complete. U|M)n
this evidence, it doth not seem to me that there
can be auy doubt with you^ whetlier he be
guilty of this fact or not.
▼OL. XflL
897] S GEORGE II. Trial of Wm. Hales, far a Misdemeanor.
473. The Trial of William Hales,* fot a Misdemeanor, in
taining the Sum of Four Hundred and Fifty Pounds,
Mn William Harle, by false Tokens rf 3 Georgi
A, D. 1729.
Jury sworn ova agaiD.
Clerk, OyEZ, Oyez, if way one can in -
Ibrm, &c
Gentleiiien of the Jary, William Hales ttaadt
itidicted by the name of William flales» kc, Ibr
falsly and deceitfolly obtaining the sum of 450li
of Mr. William Harle by a false token, to wit, a
promissory note in the name criT Mr. Robert
Hales, whereby the said Robert Hales is sup-
posed to engage to pay within three months
afler date, the sum of 800/. to Samuel Edwards,
esq. with a counterfeit indorsement on this note
to the great damage, &c. To this indictment
be hath pleaded Not Guilty.
Mr. Strange. This likewise b an indictment
iigahist the. defendant Mr. William Hales, and
is for falsely and deceitfully obtainmg a sum of
money of Mr. William Harle by a false token.
And it sets fbrth, that the defendant haying in
his possessioo a promissory note of Mr. Robert
Haies's for 800/. payable m three months afler
date to Samuel Edwards, esq. with a fbr|g[ed in-
dorsement thereon in the name of the said Sa-
muel Edwards, esq. did falsly and deceitfully
obtain of one Mr. William ftarle, the sum of
450/. on the mid note. Tliisis laid to be to the
great damage, &c.
Mr. Hungerford, May it please your lord-
ship, the fact charged is the ?ery same as in
the former cause already heard, only upon a
different law, Sd Hen. 8. There was, it seems,
•o long agone an abominable practice of ob-
taining money by false tokens. The act of par-
Kameut hath prphibited that practice, and made
It penal. There is but one witness we shall
trouble your lordship with.
Mr. HarU sworn.
' Mf. Hungitford, Mr. Harle, pray gire an
account to my lord, and the jury, when you
first saw that note, and what money you paid
«pon it.
» > I ■
* See the preceding and following Cases.
f These Trials were taken in short- hand bv
•rder of Mr. Edwards. Farmer Ediiion,
Harle. On the 13th of June, Mr.
applied to me, to lend him 460/. npc
note. I accordingly made a draught •
goldsmiths, which I suppose was pa
saaae day, haf mg taken up the drau|
settling mine accounts.
L. C. B. Pengelly. Mr. Lscv, do you
that they should go on further in the
dence? — Mr. Loc^. No, my lord.
L. C. B. Pengelly. This indictm
against William Hales, goldsmith, ll
ootaining upon this note a draught equ
to money, and which afierwards pr
money, oy this false token. If the no
forged, it was a false note. He brouo;
note as a good note, to induce Mr. Harli
commodate him with 450/. thereupori.
is the description of the act of pari!
that if any one by a false token doth ob
gel any thing or any goods of another*!
poral punishment shall be inflicted,
appear to be a forged indorsement ; tbL
a ndse token, he must be guilty.* So t
evidence is the same as to both these
meats.
The Officer sworn to keep the Jur
Clerk. Gentlemen, answer to your na
Jury called over.
Clerk. Are you all agreed in your ver
Jury. Agreed.
Clerk. \vho shall say for you f
Jury, Our Foreman.
Clerk. How say you, Is William
Guilty of the misdemeanour whereuiti
cbaiged, in forging and publishing an ii
ment on a promissory note, or not Guill
Forenum. Guilty .
Clerk. How say you, Is William
Guilty of the misdemeanour wberew
stands charged in obtaining money by
token, or not Guilty f-^Foreman, Guilty
* As to this, see East's Pleas of the i
chap. 18, seel. G.
Triato/fl'm. UaUi and T. KinnenUy.
iT^. The Trial of William Hales and Thosias Kinneuslev,
Clerk, for forging aod counterfeiting a Note of Hand, bear-
ing date August \6, 1727,* for Twelve Hundred and Sixty
Pounds, payable to Samuel Edwards, esq. or Order, signed
Thomas Kinnersley, and indorsed Samuel Edwards : SGeouge
U. A. D. 17Sy.
imy called orer ikg:iip, and tworn.
Cn^. 0YE7^ Oyw. If any one oan in-
km ny InH Uie kin^'i rnMice, ibe king's ser-
^■•^•tknmry. 3cf. ui ini> rause between our
■wuiiyu \orA the king and W illiim Halei ami
IkoM KionecBley, let tbem come farlh, See.
Vu* ihc loaticunent ww read.
lb.Srrdafc Geutlemeuoflhejuiy. This
•U iaifteliiical ■^■imt ibe two priHOUera si
ftihr, fTjllum Hales uf Londun, lale golil-
^itk, aad Tbotnu Kiuaerslvy, clerk. Tbe
Woiacsl acts furlh Ibatthese livo defendauts,
hMfftnons of ill Came atiil reputation, and
^■iif iDil iDleoding 10 derrand Samuel Ed-
■w4,(Ki. aod divers other bis majesty's sub-
^■■,01 Mttreb last had in ibeir custody a cer-
MM(B IT • writine' purporting to be a pro-
■■■rj auto aigned by Tbumus Kinneraley,
miitiM Aog. 16, iTar. lo this noteTbo-
^Sjoner^ey >* suppnaed lo promise to pay
UUJ. USaniiiel Edwards, esq. wilhb three
■atamfter date, far ralue receiied ; that on
AaMtewbicli they bad in their cusloily,lbey
A^ so io<lor«eineul in Ihew words, " Pray
fU la lli« onlcr ol' fur Tal ue re-
omri, Samuel Edwards ;" that thus bating
aMreaMAdy Ibis note with this forged in-
^UMMiM iberrufioii, and knowing this to bea
h|tri isHlimeuieDl, Ibey did afterwards pn b-
U il to bn a true one. These oRrDcea are laid
I (Teat damage of the said 8amueJ
— t tbe breach of his majesiy's
I fill example of other his majts-
I like case offendine;. To Ibis
' have pleaded Not Guilly.
Gcnrrat. Hy lord, and gentlenien
•f the jury, I am of counsel on the same side
ki mj luTil lh» king. Genilemen, the charge
IpBl III* defendant is for forging an initone-
■aMoa • ppTmibsory not* for 1,S60/. Like-
aatlkn arcchargnl willi publishing the said
Malrriat JBilorwiiient for a true nne, know-
^ iW MUM to be forged nud counlerteii.
taltMea, tbu i* nut the tint of sereral facts
1 9m ■■liisr thai have come to he cuniidered
qk tagard to tbe defemJHDt Mr. Halei : but
%lntllHl hath corib lo be examined in (hi*
ilrfendoiit, Mr.
fm ibargad upon tlx
liwmUy, a dwgytn
* &B Ifee fnetAng uul Mowing Cbks.
lancholy thing that when a scene of fiirgeiy of
■Ilia uature is going on, which as you bavd
been told is uf a very [leiDicious nature lo trade
and commerce, we lihoutd see nne chartrcd
Iherewilb that halh a right to a[i)iear in that
habil, and thinka til lo appear here in it. Uut
it Hill appear that there is jiifl ground to charj^a
not only the defendant Kales, but the defenibnt
Kinneraley. Gentlemen, as to Ibe fact, it will
I that i'
n thes:
tbe former fact ; that by Ibai corresiiondence
ti>at Mr. William lU\es thought tit (n let him-
self into with Mr. Edwards, by applying fi>r
frank covers lo send news into tbe coiintry, be
look occasion tu make use of such a paper ;
and that there bein|; an intimacy between him
and Mr. Kinnersley, Mr. Hales having by Ibia
means possessed himself ofa frank cover with
tbe name of " Samuel Edwards, flree " there-
on, Ihat u|Hin a piece of ibat paper cut otT from
tbe rest, a promissiirv note is wrilleu. I lake
it lhat the note will appear to be tbe hand-
writing of Mr. Kiiinersley, dated in a different
baud, Aug. 10, 1737. The words are these :
" 1 promise lo pay to Samuel Edwards, esq.
or his order, three monlha after date, ihe autn
of twelve hundred and sixty iioundi, for tha
value received. TiiuM.ts Kikhekslei'." .
On tbe back of Ibe paper these circumstaDCca
will appear : fiisl, the edj^e of ihcpHper on Ihat
lide uf it where the indoraenient ia wrote ap-
iiears cut offi and as in tbe furnier cose, ao
here there are tbe tails of two or three letter*
still remaining plainly to be seen. And it will
appear that here is an irregularity and uneven-
oe*E in the culling ; the edge in one placa
smoother btiiig lurued in, aud en book or deul
made in lite paper. Under Ibis, pretty near
Ihe top of the paper, is written, " Pr^y pay lo
the order of," then there Is a wide blank as in
Ibe former instance; then follow tbe words,
'■ For tbe value received, Samuel Edwards."
It appesTb that the words " for the " are writ-
ten in a sironger and blacker ink than the
former; the/of ilie former sort, probably Mr.
Edwards's. "The word " Ihe " is not wrilteu
in a contraction ua hetbre, but at length. Here,
iustead of changing leltera, erasing or turning,
are leliers wriiien over in a blacker Ink ; iha
other letters, aa the two re ajipeit in a palsr
ink ; BO ilial it will appear to a ftenioDslrutii-n
ibat this was a frank turned to this use. <Hh*r
ubeervatioD* will likewiie appear as Id tb«
i
227]
3 GEORGE II. Trial of Wtn. Hales,,
473. The Trial of William Hales,* for
taining the Sum of Four Hundred
Mr. AViUiam Harle, by fake 'J
A. D. 1729.
4f.UMTtle!f
ai thai il
. 3 ipprebeDJ lii
:gnind«d nnd cai
tsa. il will >f>li<
Jury swoTD orer agiio.
Clerk. OyEZ, Otm, if any one can in-
form, See. 3 "^ S
GentlenienoftheJory, William HalMriaadi
indicted by Die name of Witliara Hales, Sec. fbr
lalsly anil deceitfully obtaining (be autn of 450^:
of Mr. William Hsrle by a tiTM token, to wit, a
frnmissary note in the name of Mr. Robert
Tales, whereby the laid Rahen Hales ia sup-
posed to engage to pay within three months
alter date, the sum of 800/. to Samuel Edwards,
esq. with a counterfeU indonement on tbia note
in the great damage, &c. To this indictmeat
he hath pleaded Not Guilty.
Mr. Strange. This likewiae is an indictineot
agimst the defendant Mr. William HalM, and
is tor faliely and ileceitTully oblaiuing a
money of Air. William Hariebyafal*
And It sets forth, that the defendant fai
nu nossesiion a promissory note 0I
Hafes's for 800/."payable to three .,
dale to Samuel Edwards,^, with-.,
dorsemenl thereon in the name of tlie
trnitl Edwards, esq. did falaly and
olHoio of one Mr. William Harle, L...
A'Ml. on tlie said note. This is laid U
grent damage, &e.
}\t. UangerfoTd. Hay il please
>hi|i, the fact charged is the Tery t
the furincr cause already heard 01
dilTereat low, 3a Hen. 8. There
to long Bgoue an abomiuablc pi__
laming money by false tokens. The .
llament hath jtivhiUiicd that practice.i
Il penal. There is hot one -■■
trouble your lordship with.
Mr. Hark •wnrii.
Ur. Ilungirfvrd. Mr. Hurli
account lo my lord, and the
fir^l saw that note, and what
•1 dcr ol" Mr, Lilwards. Fvim
Hark
applied
■"l^" . ii^im^tiay Uiinff,
«"'*''" '^eflhe:
^"? • ^lii'baiMl.wi
•^;l'- ^*^ brief be _ .
th
■d-wriUng. II.
f be rigCt, iba
pAalwe shall lay before
— *^ of a|)ptyil^; to Hr. E
anner of making ihia m
^^bI, the DM be made of il. h
-^d«iMmting ofitoaa true to <
■ ^iitppeanoD ihefaceofit tub
II will appear plainly agains
aeemevl in the forgery, 9
n of it. A> lo the oiher 0
_ ~" nneraley, the circ
' ^ I have meotianed will make it
' ^^ and be as strong eridence ag
'--It the other.
gm. Wliilaktr. I will not lake
Hvnrdsliip's time, then: lieing ini
fittis; but aliall immediately cull
ma.
Jtmet Maddax and Am
art he inserted over again,]
yir.Jakn SpicerM\
8(^. WlUtaker. Look upon that 1
Ml acquainteil with Mr. Edwart
n™r__S;>ifer, Yes, Sir.
San. Whilakir. How long have
MnwiMed with it?
^^kv. Twenty-four years, Sir.
Smj. WMaker. How hug lia*e t
Mtwlumr
Sfktr. Between ten and I'lnun y
%IQ. Wkitaktr. How much ib h'i.
J^icr- Samuel Edward* and the
]
for a MisiUmeanw*
Sfri. Wkitaker. Very well. As to the other
kttnt, whit are they ?
flakier. Some of them seem to be written
tver ether letters, which I suppose were pert
ef Ihe word * free.* The r seems visiblt he«
Ivettlhtond r.
Mr. Strange. What was his method of wiiu
Efiut. With a donUe /, jast as it is here,
tk, Amge. Did ^oa ever koow him use
itasid Fraak f^^^wer. Never, Sir.
A9. Wnutaker. You say that }-o« haro been
■MHMd as derk between 10 and 11 years.
Vnyon ooneemcd befofe for him ?
^BiSBr. V OB, CnT*
fhq. Wkitrnker. lo what business f
As to Ma pivsae affairs in town, cash
I, and many of his vents.
WAUmkgr, During the time that you
aeqwuntcd with Iris prifate transactions,
understand tnat there were any
in asoney affiurs between him and
. No, nsfver any whatever. I never
as heard Ins name in the family.
1^. WMUmktr. Did you ever know that Mr.
iMds used to make a practice of indorsing^
■f Ukar pcffion's notes, or of giving' pronrn-
•wislsn? Sfker, No, Sir.
IHJ. WkiiakeTn 1 believe you will all be
omiMBd that M is his hand -writing.
MkMnfej. 1 admit, Sir, the whole body
tf tensle to be mine own band-writing.
■r. 8ir0ng§, Look opon it before you do
in We desire nothhig but what is fair.
Mamersley. Yes, Sir, I admit both the fi-
en the top, and the whole note to be
faj. Whiiaker. Gentlemen, yon will ob-
mveAat there were but 3 months mentioned in
AcBSle. The note is drawn August 16, and was
m brsoght till March 90 after, so that the
vWIe time was long expired before the note
mi left with Mr. Bird for the money which
What upon it.
Mr. Strange, I verily believe, my lord, the
and note to be both the same hand.
Mr. William Wright sworn.
^myWkiiaker, Sir, were you at any time
Ih Mr. Kinnersley and Mr. Edwarch, and
an there any diseourse passed between them
ikMt this note?
Wright. When Mr. Kinnersley was exa-
' before sir Richard Hopkins, he there
it to be his own hand- writing, butli the
1* and indorsement.
faj. Wkiimker, But give us an account
*Wdier he was going to make a confession,
m4 whst was aaid upon it ?
Wrigh. As soon as he said that tbc note
ta sH his hsnd-writing— '
L C. B. Ptngelly, And what did he say be-
J^fiifU. Wbtl he said, my tord, as to the
WM sftarwii^ As soon u he
A. D. 173a [SSf
I Kaid that the note was all his hand-writing, Mr.
i Edwards asked him, Why he drew the note
! payable to him, when there never had been
any dealings or negociations between them P
Serj. WhUaker. What said Mr. Kinnersley
to that ?
Wright, He said that there never had been
any doings between them, either before or
since the making of the note payable to inm ;
that he did not know Mr. Edwaros, nor, except
that time before sir Richard Hopkins, had not
seen him.
Serj. Whitaker. Pray, Sir, give ns an ie-
eount how he was prevented ffoing on.
Wright, He opened himself in this manner :
that he was indebted to Mr. Hales m that sum,
and more, and that Mr. Hales desired him to
give a note of his hand ; that he asked Mr.
Hales to whom it should be made payable? I
replied. It is very unusual to ask tliat. It is
sure natural for a man to make it payable to a
person that he owpth the money to. I said.
Sir, you seemed before to declare yourself an
unhappy person, an undone man. 1 asked him
the reason ; and upon that Mr. Mitford, who
was with him, said, You shall not go on to de»
dare any thing further, yon may do younelf
an injury.
Mr. Strange, Did he say at that time, that
he saw any thing on the back of that note ?
Wright, As soon as he had declared the note
to be his hand -writing to Mr. Edwards, and
Mr. Bird had shewed the note to Mr. Kinners-
ley, he was asked. Whether he knew of thai
indorsement of Mr. Edwanls's hand before he
saw the note? He said, he did know of the in-
dorsement thereof, but knew not how it came
there.
Mr. Strange, How did Mr. Edwanis ask the
questi<m ?
Wright, He asked Mr. Bird, Did Mr. Kin-
nersley own the indorsement before yon shew*
ed him the note?
Mr. Strange. Sir, you do not apprehend the
question asked you. What was the qnestioii
that Mr. Edwards asked Mr. Kinnersley ?
Wright. Whether be knew of the indorM-
ment before that Mr. Bird showed him the
note?
Mr. Strange. What did he say?
Wrifiht. lie answered that he did.
L. C. B.. Was that all that he said ?
Wright, He said that he had had sereral
dealinj>fs with Mr. Hales, which was the cause
of bis drawing that note in that manner.
L. C. B. But what did he say concerning
th(! indorsement?
Wright. Mr. Bird said, tbat before he shew-
eil Mr. Kinnersley the note, Mr. Kinnerslet
said that there was such a note of his hand,
with such au indorsement.
L. C. B. Hut what was the answer that Mr.
Kinnersley (jave Mr. Edwanis ?
Wright. Tiiat he knew of the indorsement,
but knew not how it came there.
Mr. Strange. Did he, Mr. Kinnersley, men-
tion the indorsement himself? Did be say,
4
935]
9 GEORGE II. Trial of Wm. HaUs and T. Kinnerdey, [SS(
whether he law the name before hit writ'uig
the Dute ?-— Wright. Not tt that time, Sir.
Mr. Siranse. Did he at any other in your
heariiisr? — li'righi. No, Sir.
!ilr Estrange, When Mr. Mitford ttopt him,
^as there uuy discourse afterwards whoaa
hand-writing the note naight be; was there
any dispute?
Wright, Sir, the company broke up then,
when Mr. Mitford had given him that caution.
Sir Richard Hopkins sworn.
Serj. Whitaker, l^r Richard
Mr. Xocy. 1 would beg first to ask sir Ri-
chard, whether this examination %vas reduced
into ivriting ?
Sir R. Ilo/ikint. I always take a memoran-
dum in my book of what is said upon an exa-
mination. Tliere was none other examination
in writing, but my memorandum of what 1
thought sufficient U> occasion the commitment
thut I made.
t^rj, Whitaker, When was it?
Sir R, Hopkins, it was some time about
September. I remeAaber that he was chargeil
before me about two notes. One was a note of
1,260/., the other was a note of 1,650/. ; which
of thc^e you desire me to sneak to, J know not.
Serj. Whitaker. That of 1,260/.
Sir R. Hopkins, There was such a note
drawn by Thomas Kiunersley, |>ayable within
three months afier date to Samuel Edwards,
esq. and indorsed by Samuel Edwards. 1
looked ui>on it ; and, turning over the indorse-
ment, it seemed to me to be an altered and
forti^cd thing. Upon this I examined Mr.
Bird, whom they offered as an evidence.
Mr. IVird lold me, that he bad lent money upon
that note of 1,260/. and that he had received
some money in part of payment of what he
bad lent: 'fhat Learing that Mr. Hales was
taken up, he made application to Mr. Kiu-
nersley tor what money remained due to him ;
that when he made such application to Mr.
Kiunersley for this money, Mr. Kmnersiey, be-
fore he saw the note, told him, that he had a note
of his for his 1,260/. payable in three months
after dute to Samuel Edwards, esq. or order,
and indorsed by item uel Edwards. This 1 laid
my finy;er upon before him, thinking it sufficient
to conunit him, and repeated the words to Mr.
liird, are these the words that you say ? if they
are, re|)eatthem ; which he did. I askefl 31r.
Kinnei-sley, whether he hfid any dealings with
Mr. Edwards? He said, that be had not. 1
askeii then, how be caiue to make a note for
1,260/. payable to him, a person with whom
he liad no dealings. He said, that he did it at
the icquebt of Mr. Hales, to whom he was in-
debted iu that sum of money« He said, that
as to the indorsement he knew not how it came
IhtTP. He seemed ready to make an ample
conieshiun ; but there was a person thera, who
was (1 think) one way or otiier related to tiie
law, who stopt him directly, and had oft inter-
rupted. I said to him^ air, tbb is not be-
•omiDgherc: I expect to caniae any penoo
without your interrupting. I will afterwards
ask any question that -«—
Seij. Whitaker, Sir, when Mr. KinDeiilcy
bad owned the note, was there afterwards a
denial?
Sir R. Hopkins. Aflerwardst Sir, there was
a denial. It might be as to tlie other note;
and not that which you are now eilung IM
about.
BIr. Richard Davis, the constable, sworn.
Serj. Whitaker. Richard Davis, I think tbei
you were the constable sent to apprehend Mr.
Kinnersley. Will you give us an eoooanl
how often yon went to apprehend bim,wbelhci
he was to be met withal, and what passed when
he was apprehended ?
Davis. My lord, on September 18, tbm
was a warrant issued out to take up the ktI
Mr. Kinnersley, and was given to ine to eie*
cute. Accordingly 1 went in the aftemeeai
and took a |iorter with me. We went to thi
Magpye tavern without Aldgate. I sent the
Sorter thence to Mr. Kinnersley *8 house is
lansel-etreet to tell him, that there was a gen-
tleman there to speak with him ; becaoee, hi
living in Mansel-street in Middlesex, 1 conU
not there execute my warrant. When lh«
porter came back, he told me, that the dmughlei
came to the door, and said, that the reverand
Mr. Kinnersley was not in town. After I Iml
paid for what I had called for, I wentfraa
thence to the derk of the parish, and esksd
him, whether the reyerenu Mr. Kinnersln
was in town? He answered. No; and sain,
that he went out of town on Tuesday, I thill
it was, and tliat he did not know when h«
would be in town. He asked me what I
wanted with him ? I told him that a conpk
wanted to be married, and wanted a licence
Won't (said ht) the curate do? No (said I)
the young gentlewoman will not be marriei
by any but the doctor, and at his church : S
the person having no apprehension, sent me t(
London-house in Aldersgale-strcct, to enquir
for Mr. May, who would tell me when thi
doctor would be iu town. He told me, that b*
would be in town next Thursday night. Ac
cordingly I went the next Friday morning
took a porter with me, went ilirectly to t£
Doctor's house. When I came there I ninj
hard at the gate. Out came the daughter,
asked to speak with the doctor ; she said tbi
he was not at home, and enquired what I wouli
have with him. I told her the same about m;
wanting a licence that I had tuld the clerk be*
fore. I will (said she) go and call my mammi
Accordingly madam Kinnersley came out: .
told lier that I wanted a licence, was in
formed that the doctor generally kept licence
by him, or at least could help me to one. SIm
desired me to walk into the parlour, said the
the doctor had been out of town, was very muci
fiitiff ued, which was the reason that he was dc
nied. Out came the doctor; Sir, (said he
where is the gentlewoman ? Sir, (said 1^ she s
hard bji at the Magpye tavern by AJdgati
f<yr a Misdememor.
il bt) is ibe, *Xii nho art ber frieoils
B Ifaat ber name waa Binl. When
B abe r I Mid ID Fleet -stifei.
<i be) remeuiber thai name. ¥011 do
. . BUllknowlwrrallierTery ndl. What
■II (aU or) ia she ? I told bim her age.
B«n bs I'riends aiten conaeut (laiil be),
'■'afcWIbM l.nouldiKil Jo it For lOO/.; tbe
yniqr ia 50/. \ I Inid liini lliat il bail been
taila MT know ledge. Ave (said be) ilroaj
k M Ac Vtm. J dHired bim to go to the
k<M^ where her brother waa wilh her, Rod
k*«M b* Mtisfied. My intent wna to decay
b ■!» tbe libcTtiea ol'ihe city. Hetaid, Nci,
k<M«Unotgn vrilb me; so I bad no oppor-
tari^tben. Itut baling seen him once, and
MinaatDS liiin, I afUrwarOa watched for him,
mi *a* bim come nut, and go through the
Ibmn. I watched bim till became to Ald-
|Nt; I kben paid my respectt to liim. I lliiak
{mA bt) that you are the peraun thai came to
■tabaat ■ marriage. Yea, Sir, (aaid I) but 1
'■" ■ ^ alfaii to apeak
He
, bad the
piisni aonl to him, be would readily have
«■&. I aakcii bim why he ilFniett bimseir?
■»Mll, Ibal be apprehended an arrcBl. I de-
M bfai U go with roe to the While Hnn
iMsia Biahai>9gale' street. Xlelbere owned
fc]. WkUakcr. Was it within or wilbout
^\m%t—Dam. It waswithin.
.%n. WKttukrr. Did you go wilh him to sir
fete4 Huphina?— Duvit. Yea, iSir.
|. Wkttaktr. My lord, there is another
""tu we aball prute, tor all is drciiro-
We ahall shew that Mr, Kinner»ley
_ '. HalM have been often together for
r It« raoDtlis in a priisle manner. As
B bath come in, the other hath
Cwilh kina into a private room, and they
Blajnl •ooie lime together ; and this was
itM Hi* iitiM that lime Iraiisadion* have
nbm these matters are laid together,
jai^MjailftcthalMr. Kinnenley bath not been
, mMm Mr.Edwar^aaalogivehirol.ifGO^;
lAu tberv waa a nlain limned design to
■ IbiaHiBtwy npon biseredit. Join (bis to-
'w with bis owning, that be knew that Mr.
^ ■ ' ■ ml waa on ilie back o( the note
V the note, anil that he knew of
rot. lliongh he said be knew not
Mlbere- CoDsiilering these things,
( bul that there was a con-
MbAtneutbein. We (hall call aereral
We submit it to my lord, whe-
— -f. Il ia foreign to this indicl-
aboulil have notliing nlTered
■at we may tw sii|ipoaeil to come pre-
■ ilWand. We caDDot be aupuuseil to
^ pNfwrH in iMcnd ihii, by shewing how
beaaM tbete, and upon what ncconnt.
_ I- C fi: Il ia an indictment againat both
!%• Bal« WM indeed »&>
scribed by the defendant Kinnersley: Bat
then itwasdebiertnl ontby Ihentber Jerendant
llalea. Now, they say, that they will shew
by several witnesses tbai they were Tery oon-
lersant logether about that time, and they are
■cquainteil with tbe private manner of Oieir
conreraing logether. You hear what is the
use they make of it. I see nut that we can re-
fuse their giving this account. What uae is Ia
be madeol it muat beletllu the jury.
V[t. Mather. Aretbeae things lobe proredby
Hr. Strange. Pray, where do you live?
hah. At Feel's colfee-houie, in Fleel-slreet.
Mr. Slrangr. Do yoti keep that bouse?
Bab. Yn, !^ir.
Mr. Strange. Hare you ever obaened ihat
Mr. Hales anil Mr. Kinnerstey erer frequented
that house, and in what manner ?
Bab. Last summer, tbe greatest partofthe
sutnmer,someiimes twice or thrice in a week, till
near the lime that ibe gentleman was taken up,
Mr. Hales would somcliinea come thither, and
anmetimes be there an hour or two. Some-
times be wnuiil ask whether a minister bad
been there to aak for himT We hardly knew
the name of either of them, but knew whnm ha
meant. Mr. Haleswould often bein ourroom,
and see sonielimes Mr, Kinneraiey coming, out
of the window. Mr. Hales would hardly take
«ofhirr
but a
she c
.te room, and
Hales would go ii
the other atterwards go t
timea as soon as one came in at one door, the
other went out at Ihc other, and be followed bim.
Serj. Wliilaker. How often was ibis ?
Bab. Twice or thrice in a week.
Mr. Strangt. Do you remember on what
occasion, and bow tbey lefl off coming to your
Bab, Mr. Kinnersley was not at the honse
for two or three weeks or a month before Mr.
Hales was taken up. Mr. Hales was there a
tew days before.
Mr. Strange. Do you remember that Mr,
Kinnersley passed by?
Bab. Once he did. He weol down Fleet,
street- Mr. Halearoscup, went out, ood went
alW him.
Mr. Strangt. How long tvas tbis before Mr.
Hales was apprebendeil ?
Bab. It was three weeks or a month, I he-
litre, before he was ajiprcbendeJ.
Mr. Slninge. I ask, Whether at any lint
they aatdowii in Ibe public room ?
Bab. Very seldom : Ihey generally went
into the pritale part.
Mr. Strangt. Was that distinct from lb«
rcstofibe buiiseF
Bab. Yes, Sir, i^uile separate.
Mr. Juhii BrBokttt
Mr. Slrtige- Where d* yon
S391
3 GEORGE 11. Trial of Wm. Hales and T. Kinnerdey, ££4
Brooks, ' I keep a coffee- hou<e in Downing-
(ttrerty in WesUniotter.
Nr. Strange, What name doth yoor coffee-
house go hyf — Brookt. My own name.
Mr. Strange, Do vou l^now tbat you have
ever observed that 5lr. Hales and Mr. Kin-
oenfley ever frequented your house, and in
what manner ?
Brooks. Mr. Kinnersley hath sometimes
come to the cofice- house ; sent for a porter ;
gave him a note to Mr. Hales, who hath come,
and they have gone to a private ^tart of the
room.
Mr. Strange. Was there aoy other with
them? — Brooks. No, Sir, never.
Mr. Strange. Was it often that they met
thus? ^
Brooks. About four or five times iu a month.
Mr. Strange. How long have thcv stayed ?
£r(k>/». Several hours. When I have asked
the servant whv a candle was not carried them,
ke hath said, that they refused it.
Mr. Strange. How long was it before Mr.
Hales was taken up ?
Brooks. About a month.
Mr. Strange. Was tliere any observation
yiade upon his being taken up ?
Brooki. I observed it the more, having oflen
«een them togctlier.
Thomas Janeway sworn.
Kiuncrsky. I admit, my lord, that we have
been together at several coffee- bouses.
L. C. B, Well, now the mau is sworn, we
will go on with him,
Mr. Strange. Do you know Mr. Kionersiey
and Air. UB\ei?-^Jnntuuy. Yes, Sir.
Mr. Strange. Do you keep a coffee-house?
Janeway. Yea, Sir.
Mr. Strange. Where?
Janeway. In Cornhill, Sir.
Mr, Strange. Do you remember tbat they
have frequented your house together, and in
what manner ?
Janeway. I believe they may have been
there t^^ther several times.
Mr. Strange. What company had they with
them ?
Janeway. 1 take no notice what company
is there. I observed them not
Mr. Strange, How ot^en have you observed
tiiem retire up stairs together ?
Janeway. I take no notice of sucli things.
They might for an hundred times, for aught 1
know.
Serj. Wkitaker. My lord, we shall rest the
evidence here. We submit it to your lordship
and the jury, when such a note is drawn by
•uoh a mau upon such a paper, by which he
promiseth to pay such a sum to a person with
whom he had uo dealings, to what end can it
ke. Can it be with any other intention than U»
charge an inuocent mau witli it ? J think it is
a plain case. It k certain that Mr. Hales car-
ried this note, and borrowed a sum of money
upon it.; and Mr. Kinnersley made preparation
tor it by making a note for so much monty
psjfable to Mr. Edwards. Doth a nan q
easily ifive 1,960/. to a stranger with whom U
bath had no dealings ? To what pnrpote eonk
it then be thus drawn? Wb^, to he indorsed
And this Mr. Kinnersley did, and he ownei
that the name was there, and be knew that Mi
Edwards was a rich man. Well, if Mr. £4
wards was a rich man, and^the other not won]
a groat, as he owncl himself to be an nndon
man, to what purpose then can it be? WeU, 1
think it clearly appears tbat this wan a eon<
trivance between them two. If you think mi
this plain, I think that it is imnoiisiUe to torn
vict any man on a stronger evidence.
Ser). Darnell. Mv lord, I amcounfel ierthi
prisoner at the bar, Mr. Hales. Aiu| I thiak j
doth appear that there was a transaction ha
twecn Mr. Hales and Mr. Kionersley ; av
that this money was due from Mr. KiaMibei
to him. And we aitprehend, nntwithftandini
what hath been oflered, that the confsMinp s
Mr. Kionersley is a proper justification of lb
Hales. It is not, my lord, Mr. Kinnerslev'
being a defendant that shall deprive Jlr. Uu|
of the benefit of this oonfesston. It ap|^earai|
that he was indebted to Mr. Hales, this nsl
was given in satisfaction : we apprehend Ibi
it was given upon this acconnt to R|r. Utlfl
In confirmation of what Mr. Halea nilh, m
can produce a person to shew tbat therf nt
an account between them, and Mr. KinnMhl
acknowledged such a balance, in salis&clii
of which this note was giveo. And we thpi
that it could not be drawn as a note of U§
Kinnersley 's payable to Mr. Hales, not «■!]
because the account would be as good agM
Mr. Kinner&Iej^ as such a note of bis hand, k
also because of 5fr. Hales*sown circumstance
Mr. Hales applied to a gentleman that reooqi
mended him to Mr. Bird to borrow money qpo
this note. And, gentlemen, it was thia nel
thus drawn that recommended him. M;
Hales had the misfortune to be oonceraed wit
sir Stephen Evance; he coukl not therefai
appear himself; and, therefore, by the assial
ance of this note, borrowed tlie money. Whi
difficulties came upon it, he went and paid pai
of the money, and I believe would have talu
care to have paid the whole : it doth notappei
that this hath affected Mr. Edwards. H
name indeed hath been exposed as a roan won!
not l)e williuff thatit should ; monev bath bei
raised upon the credit of his name ; out he hnl
not becu affected thereby. This therefore lid
on the unhappy circumstances of Mr. Hak
We will call one witness, and ihen this coufti
sinn of Mr. Kinnersley we ho|>e will avail.
Mr. Lacy. My lurd, I apprehend that there
a circumstance ihat lessens the weight of, if
not wholly sets aside whst they go upon. Whi
they have gone on was, that Mr. Edwards
franks were used lo this ill purpose. Aladdae
a servant of Mr. Edwards, is produced, wl
tells us of a parcel of franks that were delif en
iu July iMt. Mr. Bird gave an account tk
this note was liroughk to him in March : i
that ii was brought him before thoae fnnl
I Mhdemranor.
Aiul thnugh il may be ap<
there were oiher rmiikti, we
Oittk tint (bera ouyhl lo be a ptout' of some
ji.U il.ii iffrti dt'lKcred before.
TIterc hnfe been, Mr. Lacy,
■j'l^weti) for^teral years. Thoie
< 4:Iil ill July laM, arolliose ihkl
iiniikn), but were only covei-s iell
Mf- R^btrt Burkil ivimn.
<://. No ! What dolh (lie mao
' What, none in Newgate, nor
Uo you know of oooc ?
■ .,Sir.
' -■,■. Do j'ou know of any money
ftji 'u nl auy time itue froiD Mr. Bale* to
Nr. fciMMnic)' r
Btrkit. No, Sir, none at all.
LC. B. Ila>e voii anyolber trilnesi?
Sqj. Darnell. My lorJe, there are Iwo wit-
• ■ --.slaleJ,
^ Ejrt. My lord, aud ^ntlemen of tlie
, A I am connacllbr Iklr. Kinnersley. I sp-
|MmJ iliM lie is ionncent. t readily agree
liy ad of parlwtli
MMHt, uid (heir ceourity necessary lo com-
M«t; toil that Uie forgery of audi notes
III ■liinrmeiiu tliereupon i« very peroicioua
ktt* f¥Uic : I ihertfure apprebend that (here
«Vt W alrong e*iileiu;e for tlie contlcling
ih a crime. 1 bu[nb|y Bubiiiil it, that be-
In * Bss be convicted or ao iutamous au af-'
fel Ifcer* oo^t to be atran^ eiidence ; and
it iMber )M^r«iuie be it a clergyman of the
flHcli of Eaj^aiiil, and his cnpacrty nl' «er-
(indepriLda M)ion liia credit: And il doth ap-
fwlkat be baihbeliarcd himself wiib all pos-
db eaalMD. You see that ibe coutrivance
tm IW iiilirvr aem la apprehend bira made
111, iiu a preience of a marriage. You
Mn, and I did glad lu tee il, and
■0 otlieis Used tbe i>ame caution,
hiaanijuiry wliul t^fe the young wo-
lof, MiilentaadinE Ihni Hhe waa not of
bcr parenti not being tlii^re, nolwiili-
dial be irit told lliiit lier liiuihcr
riUi bor, jet he ab9i>luti.-ly refused,
111 nut be coocerncil fur an
foaajm niibuui the parent'a conBenI:
Mich a p"ii>t ill hiw favour, lliat 1 Ibiiik
•lion^rr cirr^iinaiance fiir him, than
circuniiUiiceB arc ugaintrt blm. A*
affencK iliai ii charged upon bin. ilia, I
:, (bat he »li«uid gifa mit a note made
IMjalili- (0 Mr. Kdwards, and in
DtiU! in Mr. Edwards'a name, ii
ij^ Mr. Edwardi with the pay
iiinpy. Tlii'v lav a great itreai
1 ••y, that Sir. fciuiiersley wui
Liiiti«l iriib Hr. liiwuit. Ow
A.D. 1729.
of die wimenes aaiili, that Mr. KinnetUt^
hitntelf oivned that he had neicr seen Mr.
Edwarda before in hi* life. How therelbr^ (say
tbey) is it likely, that there should be any
tiur reasDa for a man tn make such a note pay -
alile lo one that he had no deahng nor acquaint*
ance with, nm- had so much as ever seen before
in his lite T I eubinit it to you, whether in ibe
course of business it is a material thing whom a
note is made pajablelo. If a man owe a sum
of money, and give a note for it, il is natural to
enquire to whuiu it should be made payable,
It was the more naiural iu this case, ai Mr.
Uales, having the miaforlune to have a com-
missiun of bankniplcy standing out against
him, could not negociste note* in his own name,
but must act in some friend or neighbour'!
name. And il is no great wonder that Mr.
Kinnersley, whose characterdirccted bis studies
another way, and who waa not Bcqiiainled
much with these aftkirs, should he imposed
ti[H)n to give such a note; and the less so, fnr
this plain rEOSOD : Sir Stephen Evance and ih.
Hales formerly Ufcd iu Mr. Kinnersley'a
parish ; received him with a great (leal of oiti-
\\ty : It can be no wonder therefore that h*
alierwards continued an acquaintance with him.
Notwithstanding his roisforlunea, it ia plain that
Mr. Hales was Hiillacquaioleil with several very
worthy gentlemen : Mr. Gibson and Mr. Ed-
wards butb furnished him with franks; sir
Uiby Lake recommended hira to Mr. Bird, in
barrow of him s considerable sum of money.
If such gentlemen as Ihese thus corresponiled
with him after his mitlbrlunes, no wuntler thai
Mr. Kiuuersley, whs had been the minister of
the parish where Mr. Hales had lived, should
beep lip ao acquaintance with him ; and so no
wonder that he ahoulJ be so imposed on. In
fhci, Ke shall shew you that he was indebleil
for such aaum to Mr. Hales. It is impossible
(Ogive a particular account of the whole affair ;
Mr. Hales being also a defendant, and there-
fore no evidence : But that he was indebted iii
some such sums is plain. Gentlemen, it is
very ioaocent if a man give a note where ibero
is no consideration. ' A is no injury to tbo
public. The person that gives the note may
mjure himself, but not the public. There ia ai>
act of parliacnent against tlie giving of auch
notes. Well, if the giving of tbe note be nut
culpable, consider bow the fact uf the indorse-
ment comes about. And if you consider how
that comes about, do doubt but that he must ha
i:leared uf the fact. How must this be done to
affect Mr. Kinnersley 7 It mu-st be on the back
of the pole when ho wrote tbe note, and h«
muM know it to be there. Now, with great
submissiou, have they given any proof, or co-
tour of proof, that it was then there, or, thai
if it was, be knew it lu be tlienf Hiey haw
given you (he prouf uf Mr. Ciid and the con-
stable, who was present when lie was examin-
ed. According to the Brst of these, it is pUin
that he knew not. He said that he knew (bat
the name was there, but know not how it cania
Tbbc, I thiuk, instaad ol a coafotiaa.
fiS]
3 GEORGE II. Trial of Wm, Hdn and T. Kinnenley^
is an BTeiAo^ of it, by nyini^y HMt be knew
nothinfir ai «|| how it came there : But consi-
der tlie nature of ^e thinip, how it is eupposed
to Ik done from a frsnii of Mr. Edwanls's.
Mr. Edwards liad never franked a letter for
bim, but many tor 3lr. Hales. Is it not most
natural lo suppose then that Hales was con-
cernod ? Hnw doih it follow, that this being
done from a frank, the nam<! must lie tbera be-
fore Aie note was wrote P A man that is capa-
ble of drawing such a note for ooeh an end,
might be not gire it to be Ihmked ? Is it not
easy to conceive, that if I give onch a note on
a quarter of a sheet of pa|>er doubled up to a
person to be franked, that he shall do this so
as to make the name stand for an indorsement ?
1 woaM mslce this further observation, it hath
been eounted doubtful, whether the making
nse of a man's name to a diflferent purpose
from what he dcsigiied itfor, shall be counted
a forgery. I think that the doubt arisetfa npon
a distinction of my lord Cowper, on the statote
of 8 lilix. between forgmg aud making a false
deed, i do not |ire(end to say but that the
opinion of the King's -bench was right. It
was in the aflair of Ward and Bridge.
X. C B, No, Bridge and Dutton : there
was an alteration. The question was, whether
H could be accounted a forgin-y within the act
of fiarliament ? The wunls of the description
in the act of parliament are, ^* if any one forge
or erase, IkcV whether he could be charg^
with forging of that note ? I was one of the
counsel. It appeared their opinion, that he
forged it as much as if he bud wrote the
whole note.
Seij. Eyre» M}* lord, \ a<]free it to be as
your hardship puts it. I nnly mention it bs a
iktubt not settled hy the priti(e<l bookii. My
lord, a man may alter a deed, e. g. a person
o Weill me money on bond ; if 1 alter tlie boud
to mine own damsge, that is no forgery ; but
when he doth it to the injury of the person to
wliom ttio money Is owing, then it is forgery :
the furgery therciore lieth in the design of
defrauding another. Now, whose good is it
that this note was drnwu for ? It appears that
my client had no benefit st all by it. The
money was all received by Mr. Hale^, and the
whole transaction about paying the money was
by Mr. Hales : he was therefore to receive the
%ene(it, most likely therefore tlitit the forgery
was his. And as to this promissory note, what
SVBS the effect of it ? No one will pretend to
say, but that if Mr. Edwanls was to bring an
action lie might n cover his money of Mr.
Kiunersley: he hath, therefore, osily wrote
A note, which, with nut controversy, hath sub-
jected him to the payment of such a sum. of
money. Mr. Hsles hath receivcil the money,
and gained by this ntite. IVe submit it there-
fore to your lordship.
Hr.* Mather, My lord, with rHstinn to the
transactions between Mr. Kinnemley and Mr.
Hales, we shall call evldi.'nce to sfiew the
reasons of those private meetings that were
bstwccB them.
Mr. Ftter Marsh sworn.
Mr. Mather. 8ir, do you know the •
ants, Mr. Hales and Mr. Kinnerslev ?
Mardh. I have. Sir, known Mr. Hale
years.
Mr. Mather. But have you known M
nerKley? — M^trth, Not so many years.
L. C. B. What is your business or e
ment ?
Marsh, I am an attorney, my lord.
Mr. Mather, Do you know of any t
tions between Mr. Hales and Mr Kiun
Marsh, About ten or eleven yeai
Mr. Hales brought me a bond of 50/.
by Mr. Rinnersley to me. Mr. Kir
owed him the money, and had given
bond imynble to me. He desired me t
Seri. Whiiaker, This is not evidence
signihetb it what the defendant told hin
Mr. Mather, What was done upo
Wlmt came of the bond ?
Marsh. I delivered it to Mr. Hale
Mr. Mather, Did Mr. Hales owe
>we y
at all.
money ? — Marsh, No, Sir, none
Mr. Cropley sworn.
Mr. Lacy, Mr. Cmplcy, What
know of any money -matters betwe
Hales and Mr. Kinnerifley ^
Craplcv, I received ahout 607. at Jai
eolfoe- house, a ilebt which was clue
from Mr. Kinnersley : they were tl
gether ; Mr. Kinnersley was the debt
Hales had given me a note for it. 1V1
nersley had prevailed on me to lend
hundred and odd ponnds upon but a sli
quaintance : he hronght another gentl<
be security with him for the paving it
1 forbore liiin for six months. ( then c
of him after it : w ben he had led nie
from coffee- house to coffee-house W
months, I was forced nt last to sue for
desired me to sue the other pnrty, and
him: I recovered half from the one,
came upon him for the other. When
to siTvc him wiili a notice of a writ
quiry, he met me with Mr. ILiles i
tavern in Holborn, about June or July
atnelvemonth. Then Mr. Hales suit
I am to receive ahout 6 or 700/. with
three months time; and then I shall ^
to pay that money: upon that I st
procedure upon the Writ of Enquiry;
Mr. Hales requcsTcd me, I took Air.
and Mr. Kinnersley'* note for the pav
it within three mouths: when tli;it I'i
expired, or within about fonr months,
What was his pnrt to pay I received :
way's coffee-house: they were to
which paid me I cannot say. The moi
in half and quarter broad |>icces : I rel
take it in tin-se pieces, being to trans;
the Allrv'. Upm tliat he touk me to a I
abom Yemple-bar, and there changed
L C. B, When was this ?
Cropley, It was in February. M
St9j
Jbt a lii9iemeatiar.
A. D. 1739*
[240
MKltsr sifB me m Utile netoat the sMue tkne
im the WMges that I had austained iu teek-
iw it; ahout 5XH, or tbereabout«.
Ilr. Sinngf, liath there been any appUca-
liw Bade, Sir, to you to appear aa a witoese ?
Cr^y. Yea, Sir, BIra. Kinnersley tent te
4mm BM ; mmA Mr. Kienertley also aeot oie
atolls, asd bcaidee that seat iue.a Subpceaa.
Mn llrtn^cL Caa you produce that lette ?
GNpigr. 1 have it not here, 8ir.
ik.Si^mmgt. Yott caoDui aay which paid
iaiiav,8ir?
fwy/ry. No, Sir, but they were both to-
l^ffgfty. Sir, one word I beg. Did not
fcBalai giro you a note for it?
UqdiSf. Yei, Sir, you and Mr. Bake
jwdinil.
Mi: FHer Beait waa called, but did not
Mr. Jokm WeU$ aworn.
Mr. lary. What do you know. Sir, of any
•■ly dnefrom Mr. Kinnerrfey to Mr. Hales?
Wdb, No, Sir, I know net of any.
Mr. Lacy. Or of any money lent, particu*
hrij aa bondved pound ? Was Mr. Kinnersley
Mtosi lo yon ?
Mb, Yes, Sir, an hundred poond ■
*ft. Itfcy. Who lent hin the money to
wmk, Mr. Hales, as Mr. Kionersley told me.
Mr. £snr. Who paid you the money ?
Mb. Mr. Kinnersley.
Mr. Ian. Was Mr. Haica present ?
lUk I do net knoW| Sur. It waa
Mr. John Sunpsoa, hanker, sworn.
Mr. Lacjf, Sir what do you know of money
Mr. Kinnersley to Mr. Hales ?
Smf§9n. 1 know ootMr. Hales, Sir. 1 never
vabrnk out of Court.
Mr. Lacy. Was Mr. Kinnersley indebted
oaipsM. Some months ago he borrowed of
MM, on some lottery tickets.
Mr. Jjify, Who paid it you off?
fiw/Moa. I was not at the shop when the
■■cy waa paid.
Mr. Lacff, But do you not know how it was
tmktTjgfd, whether by money or notes, and
Ayvhsm?
Simpmn, No, Sir, I cannot say. It doth
■t apfpsr by oor books.
Mr. Xflcy. Tk^ you know or not that Mr.
Irim paid it, or gave a note for it?
iimpMtn. I do net know, Sir.
lb. Lacy. Dolb any note by your books
given for it, or by whom paid ?
No, Sir ; if it had bef*n paid by any
than Mr. Kinnersley 's, 1 believe
te Jl fsooU bare appeared by our books.
Mr. Fowter, banker, sworn.
lisaai/sy. Stf, I lieg you to say who-
i» you HBMmber that 1 gave you a note
ifiMnAflCMr.Halw'i?
FomUr, You never mentioned his name. I
lent you money upon lottery tickets; but
know nothing of that you mention.
KiiMcriley, Did not Mr. Hales come to
yottf shop, take up the note, and pay it ?
Ftaoler. No, Sir, not that I know Oi. I never
saw him tiiere.
Mr. John Hall sworn.
Mr. Lacy, Did you ever, Sir, give a note
upcjQ Mr. Halea's acoount and for bis money ?
JialL Not that 1 know of.
Mr. Lacy. Did you at his desire pay aay
money ? — HalL No, Su*.
Mr. Xocy. Do you know any peraon that
did?— lir«/lNo,Sir.
^j. Wkitaker. Do you knew Mr. WiUiam
Hales ? Will you give us an account of his
Keying you a bill iu broad pieces, and whether
e asked you to write hie name Wells. He
can tell very well I know what this meaner
Did you give any note, or set your naaM?
liaU, I set my name.
Serj. Wkitaker. Do you knew your name
again :' — Hall. Yes, Sir.
Sepj. U^A4VaW. Is that your name?
HaU. Yes, Sir, it h,
Serj. WhUaktr. When did they get it of
you ? — Hall. On August 17 last.
Serj. Darnell, 1 see not hew my brother
makes this efridence against Mr. HueSk He
is not brought for him but fur Mr. Kmnersloy ;
and they would cross-examine him as to Mr,
Hales.
Serj. WhUaker. I agree with yon that we
could not have called him : but my brother
Eyre called him to shew that there was a pro-
missory note, he denies it. Well, 1 submit it.
Serj, Eyre. My lord, we have gone through
the evidence opened : but I would mention this
as to the examination before sir Uiohard Ho|)«
kins. It is suggested that Mr. Kinnertdey
would have confessed, but that he was in-
terrupted by Mr. Alitford. It is plain that he
bad spoke to all that was material both as to
the note ami the indorsement : J think that it
is therefore wrong for them to say that he
would have confessed more, but that he was
interrupted. But we will call a gentleman to
shew in what a candid miuiner he behaved,
and that he was not interrupted in the i^anner
that hatli been suggested.
Rev. Mr. John Hayes sworn.
Neij. Eyre. Were you present, Sir, at sir
Ridiard Hopkius's, when Mr. Kiunentley was
exaniineil ? — Hayes. Yes, Sir.
Serj. Eyre. What did you observe about his
being stopped, or did he fully speak hb mind?
Hayes. I remember. Sir, that Mr. Mitford
desired him to be cautious, and not too free
iu making bis reply.
Serj. Eyre, J only ask you, whether lie
had nut then spoke both as to the note and the
indorsement ?
Hayes, He said that the note was bis. He
said that aa to the indonement, he had heard
347]
S GEORGE IL Trial of Wnu Hales and T. Kimerdey^
that it wu indorsed by Mr. Edwards, but
([new not how it oaroe.
Serj. Eyre. Do you aprirehend that his beinnf
eautioned was to be careful in his answer, or
that referred to the answers that he had al-
ready madeP
Hayet. I apprehended that the caution was
to be careful in his answers.
Mr. Grants sworn.
Seij. Eyre. Were yon present at the «xa«
nination of Mr. Kionersley before sir Richard
Hopkins?
Grants, Yes, Sir, Mr. Kinnersley sent for
nie when he was first taken up. I suppose it
was because 1 married a relation of his ; lor 1
knew nothings of any transactions between him
and Mr. Hales.
Seij. Eyre. I ask you, whether he fully
apoke his mind about the note and the indorse-
ment, or whether he was interrupted therein ?
Grants, Sir Richard asked him, whether he
knew the note and the indorsement? There
then passed a sort of a squabble between him
and Mr. Mitford.
Serj. Eyre. Did you observe that any gen-
tleman interrupted Mr. Kinnersley, or cau-
tioned him as to his answers ?
Grants. There was an interruption: but
what it waa I could not particularly hear.
X. C. B, Hare you done?
Serj. Eyre. Yes, my lord.
8er|. Whitaker. My lord, lobserre^that the
defence that they have made is for one to
throw it upon another. Mr. Kinnersley thinks
that Mr. Hales is as deep as he can be, and
therefore may bear the load: But then my
lord, Mr. Hales wants to retort it upon Mr.
KiDDers!ey ; but the drill of both is, that Mr.
Kinoerslev maj^ get out as he can. You will
observe the defence : There is a pretence of
mutual dealings, and that this note was given
in discharge of the balance of the account. I
submit whether there hath been any evidence
of any dealings to an^ such sum : If not, to
what purpose was it given ? If it was to raise
money, was it for a fraudulent purpose, or
not? If it was, they are both equally guilty.
But the pretence now is this, Mr. Hales was a
bankrupt: and it was therefore proper for
them to have a third person, in whose name to
transact. Now how could that be proper, if
it was a person over whom they had no power?
Would any one be willing to take notes in the
name of a stranger? Is a stranger to be
trusted with such a sum? No. If not, how
then? Here is one man to write such a note
for another in Mr. Edwards's name, to what
purpose? Why, in order to charge Mr. £d-
wanis with the money : Else, what si^nifieth
the indorsement? The question then is, was
Mr. Edwards's hand then*.? And did Mr. Kin-
nersley know it ? They that woukl have it that
Mr. Kinnersley waa very innocent, say, that
he knew nothing at all that Mr. Edwarda'a
liand waa there. Well, when he cornea to be
Silied upon iod iinportiiiied Ibr the BMoey by
Mr. Bird, what doth he say ? Wbr, M
wards is a rich man : I am an undone
You must therefore resort unto him.
was said not only upon the sight of the
but before it was shewed to him. U'
told Mr. Bird that he knew that he hai
a' note of his so indorsed. Gentlemen,
of this nature are only to be detected h
cumstanoes. They will not call person
witnesses to these transactions. If thia
fair dealing, it waa proper to have called
one hooest man to give an account that 1
present thereat, and privy to this transi
But instead of tliat* which is the wickc
cannot tell ; but it is plain that here is
trivance to charge an innocent person
auoh little things as evidences of transi
of a note of fifty or thirty pounds, or th
are not to go against it. Circumstanci
not make a plainer proof than here is <
gery. A note drawn on such a little ps
so slovenly a manner, detects itself. He
plain forgery. The question is, who is
of it ; and whether there is not sufficieol
that the defendants are the persons guilty
Mn Strange. My lord. I beg it may b
sidered, whether it is not criminal to giv*
a, note. At aeveral times he declared bel
saw the note, that the name of Mr. £i
was on the back of it. If the jury are •
mind, as to one fact, it is a demonstratio
the name was upon it when the note waa
If the iury will look upon the note, it «i
pear tnat something was written upon th
and nothing more probable than < free.'
any imagine, that Mr. Edwards, whose
is there, would ever write a frank upon s
If therefore the jury is of my opinion
observation, that there was at first ' Fr
muel Edwards,' it is impossible to imagi
that it was wrote there before the no
drawn. My lord, that the jury will tt
their view. My lord, there have been (
things said as to whose benefit this sh(
for, that it is plain that Mr. Kinnersl
ceived no benefit by it, that therefore it
not probably be his forgery. My lor
plain by the account that we have given
their correspondence, that there waa
thing carrying on between them, whict
be of a very private nature. Doth it e
pear for whose benefit it was ? I am fsi
an undone man ; you cannot expect it
but must apply to Mr. Edwards who in
it: And therefore, though he made I
liable, that aignified not, as he was at tb
time liable to many more actions. Its
that they were obliged to give the note
name of another person who was respc
having no credit of their own. As to tl
jection, for whose benefit, we appreheoc
no consequence ; they might probably s
between them. There was another thi
deavoured to be proved, viz. such a de
from Mr. Sjnnersley to Mr. Hales,
they thought it naceasary to attempt s
of tbatkiAdyif they bavefaiied in that p
J6r a Mitiiemeanor.
t npinion wbb that Uiey
1 [»nol' of Uiat kini), wliicii
Wh«l h»»e Ihej ^aiueJ ?
tegiveuof l,S60l (sver^
rrom * clergymin in his
n), lliey hare prelcDaed lo nrcie
one bond of 50/. which halb not
I. but unl; Mr. Hales came to Mr.
i tnlil him ihi*, which 1 Rpnrebend
iBkntrriileccF ; Hart ihey brought lliebooJ,
il^iW liarF aj>|«urerl whrthw true ornnl:
TWiiiMi )irool (kit Mr. Kinnenlfy waa in-
tttd to Mr. lUlw. What Mr. Ciopley
■■k •■Hi'>i>*lh lo Qoninrc than about 69 or
*■ I BiuM lubmit il, whether they hare given
I w— ■— tUa uccouiil of lliii affair. My lord,
IM ta iMppincm Ihat there arv such g-encral
■niMnnrr* *« leiiiJ lo itelecllhein.
•kaU ailiii* with yuurconnsel vrhelheritbe
|n|Bi' : I wouM only arquaiai voii that it is
MNfwUr. If yuu would he heard, or call
m; vitaeo, if^ou hare any thing material fur
ym Mnce. it shall be heard: But if you
F'fac* BUT lliing af\e, ibe ciiuasrl tiir the
■■( (boat taie liberty to answer ; or if you
t^; tDy wiloeu, they must have liberty to
OTM-mminc, ar to bring any other CTitlvnce
mtnvie.
tkmmin
*«■*. I
tt)|tMlnciBn I belicTe will aci]uieace. Mr.
Msim niA 50'. i he took it in that ^cntliv
■wS naoic that was colled for b witness :
In, Hr. Took hail oae hundred and liny
jMdaMe : Another Krn'leman (Mr. Rurtnii)
m Mte of 1W(. wliirh Mr. Hales gare him
inliiDBted that
LC.B. Mr. KiDnmley.yo
jm^mM brinp nothing new.
Stntrtlfy. My loni, at ■ public coffee-
kMt he 4Mir«) me to lay down 'isl. anil the
■Am ire DOW id court which were acluatly
■MRd for M tnuch money. And as to this
t, I all God lo witneiB, thai this note 1
BB|i<Ni no other uccuuni hut on settling
'» exchange for other oolea which
thai nun. He directed me how
Ic the paper out of hi* book, and
Mt, whence I now apprehend that
■li^ name was then on the hack. I
Btny in his altering any lelleni: I
U not* for want of niouey, fur a
i> Mill du«, and call n[iou him to
_ liatnw.
JItt. Gen. My lord, whatefer Hr. Kin-
Iv^ baib avrrrnl ia without wilneiR.
Z. C. B. When persons are proacciitMl ca-
AAy, (hr bw a1lnwr-th hint not cnuosel us in
In: iWrHWe, wliai a person Bll^ts hiinwir
Mitfe tafcati iiotirr "t- Upon a charge of
Badiiuiaunr y>-ii nisk-ynar dvfnKirhy coun-
WL Md tber Uau- ih" raw. |i doth nut avail
"*yif wint a prrt<io lailh hitnself. and cluil
7 wy ariil* otn, eicr|>i «upp«rlMl by priKif.
c viHJat* u wdgtit u pfOTed,
A. D. 172d. [950
Kianerileif. Hylord, arc policies no pmnfT
Here ia n cenilicale from ihe proper nfticer.
Sir, I insist upno it that yon do me justice in
ihis matter. I will be coulent tu sufl'crilcaili
if this be not »a,
L. C. B. You are not lo be ooir regarded.
1, C. B. Gentlemen of the Jury, this i(
an indictment againut Thomas Kinnerslry,
clerk, and William Uales, late uf London, gold-
smith, Ibr forging and |iub1iihing an Indorse-
metit on aproinissury iioie, for the paymcnl of
t,250l. to Samuel lidwanls, esq. An'd the in-
diclnient sets tbrth. That the defenilanls. har.
in their custody a promissory tiote subMrribed
l>y Thomas Kinneraley, and bearing date. 4u>
etist tC. 17S7, whereby Kiunersley promised
to pny 1,900/. to Samuel Edwards, e»q. « hliin
three moulhi ; that the defenilantt, having ibis
noie in their coslodv wilh an inleiitinn to de-'
crive and defrauil llie same Samuel Edwanls,
etq, and being persons of evil fame and renu<
latioii, did falsely Knd fr«iidulenlly liirge and
eonnlerleil on this note for 1,36(»/. payahltt
i«iihiu three months after dale lo Samuel Ed-
wards, esq. or bis order, an iodoraeiuent (o
this eAect ;
llierpbv intending to charge Mr. Edwards ■■
the in jorser of Ihal note wiih the payment of
the 1,2601. coDtDined in tbf lioily of the aaid
□ole ; thai nfier Ihry had Ihrgnl and counter-
lieiled ihis iiidorsemeot ufion Ibis note, and
knowing il to be a couoterleil, ibey did publish
tbe «sid note so iudursed. Genllenten, the
counsel on Ibe bebalf of the prosecntion have
Eic(|iiainled you Ihal ihey look npaa Ibis a* k
contrivance uf both ilelendaots lo eairy on this
forgery upon what they suppose at first raerelj
afrank; Ihat the name of Mr. Edwards iipiin
the cover of a leiirr wiih the word ■ ffree ;' that
the word ' firee' halb been at tbe time of tba
indorsement altered and made * for the,' and
the words • value received' added to Ihat, and
made the indorsemenl to thi» note. For the
corrnbaraljng of ihia ilicv have called several
witnesses. Fi.st, Tbomas Mndilox'was called,
a servam to Mr. Edwards. He tells you that
Mr. Edward* lives in Duke-street, Weit-
minsler, and that the defendant Hales lived
near over- against him; that Ibe defendant
Hales frequently sent covers over, upon which
be bail several trankx dirrrlrd lo several per-
son!; Ihutlhlsbalb hren Ibe custom (iit se-
veral years ; that Mr. Edward* used to send
iheiii over indnrscil with his name ' Samuel Ed-
wards, ffree.' He tnith, that bis usual waj
svni tu iodurse the whole BuperBCrijiliun ; but
that iasi snmni'T, some lime about July, there
were six covers sent over by tbe dcfeoitaiit Ih
Mr, Edwards's house by the defendant Uales,
desiring ibat ibry might be franked with only
'Samuel Edwards uree,' without writing tba
whole supTBcripiioii ; that Mr. Edwards de-
dined Ihal, saying Ibftl he Qcvn &\&\\-. >t«
liief etlira rel'tued liim, inl t^<MC ca^&n ««<:«
151}
ft GE0&6& n. Trial 0/ JF^ HoZif Mnd T. Kinntrdey, [«MI
not iodorsed, but wcte prodaced here. He
hath been asked, Whether he knew of any
correspoDdcnce besides this of franking letters
betivecD Mr. Edwards and Mr. Hales; and
nhethrr he knciv ofany between Mr. Edwards
and Mr. Kinncrsley? He answered, that he
doth not know of any whatsoever. Another
servant, one Anne Clarko, comes and produoeth
a paper of names that was brought over from
the defendant Hales to Mr. Samuel Edwards's
house, in order lor hiui to frank letters to those
persons, and write the whole superscription as
at other times. She produced the paper io
court, which she said that she received from
3Ir. Hales's servant. And Mr. Booth being
examined thereto declares it to be the prop^
hand of tlie defendant Hales, with whose writ*
ing he hath been well acquainted, especially
since his bankruptcy, he being a clerk in that
commission. In this paper is wrote,
Two to John Pratt, esq. Bristol.
Two to Mr. Levett, Huntington.
Two to Stephen Mitford, esq. Exeter.
They make use of this evidence to shew that
there was a sort of an attempt to get covers
with these names franked, hoping or supposing
that there mi$;ht be a space left sufficient to
write a note of this nature. Mr. Booth, who
was called to prove the hand -writing of Mr.
Hales, was cross-examined by the counsel for
the defendant, whether he knew of any traffic
of Air. Hales since his bankruptcy. lie saith,
that he doth not know of any, but that he was
well acquainted with his baud-writing, being
employed in the affair of the commission of
bankruptcy. BIr. Thomas Bird was next called
and examined as to the circumstances of the
publication of this note. He tells you that this
note, dated August 16, 1727, for the forged in-
dorsement whereof both the defendants are pro-
secuted, was brought to him, in order to take
up money upon this note, and further security,
which Mr. Hales gave in March last ; that it
was brought in the manner that it now is, and
no alteration made either in the body of the
note or in the indorsement, but it stands and
remains in the same manner as when he first
received it ; that when Mr. Hales came to liim,
he pruposeil to borrow of him 750/. upon the
credit of this note for his security, and likewise
upon his own note for the payment of this mo-
ney ; that he had been requested by a friend of
his in the morning before to accommodate Mr.
Hales with this money upon the credit of a
note which the person hud in his hand, and
which was the same note ; and that on tlie
aAernoon of the same clay [March 20^, while
he was at the Hudson's- Bay house, in Fen-
church -street, Mr. Hales came to him with the ,
note, anil he then lent him the money for 14
days ; thit he then desired Mr. Hales to write
ioiiie paper to testify the receipt of the money,
and be a further security to him ; and that the
laid Mr. Hales thereupon wrote a promissory
note dated the same day, wherein he promised
the re pa^ ment of this 7501. in 14 days, which
■olo was idwcrilwd bjr the dffendant BaJca
himself; that the sum of moaey waa mada ap
in several bank notes ; that he delivered thoa
to the said defendant Hales, and took this Mia
and Mr. Hales's own note, as a security forjht
said money ; that April 3 following.
Hales brought 400/. which he indorsed
his own note ; and thai the rest of the no
remains due. He tells you, that when he
heard that the defendant Hales waa •Pffl^
bended in September last, he sent to ona Took*
kins, an attorney, delivered this note to hiai la
go to Mr. Kionersley, to get this money iv
him. The account that he received waa, thai
Mr. Kinnersley was out of town, so thai ha
could not meet with him. At length Mr. Tm*
kins intimated that Mr. Kinnersley carad i^||
to see him, but would come the next dxf^
Mr. Bird himself upon this affair. Acoordiartl
on or about the 16th of September, tha K
fendant, Kinnersley, came to Mr. Bird at his
compting-house : Mr. Bird, not kuowingwli
he was, seeing a clergyman come in his govai
and looking a little at him, he said hia aiBi
was Kinnersley. He hereupon said that bf
had a note of his hand left with him for a •»
curity ; to which he replied, 1 know, Sur, thil
you nave, and it is for 1,S60/. payablo la thni
months to 5Ir. Edwards or his order ; that ht
said that the note was of his own hand- wriliap
but immediately added, How it came to baaif
dorsed by Mr. Edwards 1 know not. Thi^
gentlemen, you must take particular notioaef
because this was tbe first mention of Mr. U>
wards's indorsement: at that time Mr. mm
had not mentioned that, nor shewed biAlhl
note; when Mr. Kinnersley haviojp owneathi
note to be his hand- writing, immediately a '^''
but how it came to be indorsed by Mr. £di
I know not ; naming thus the particular p
who was the indorser of this note. He nMb
that Mr. Kinncruley was in a great oonatcmii
tion at that time, and said Uiat he waa an aa-
done man, among other expressions. And hi
said likewise, that BIr. Edwards was a gCBll^
man of substance \ and this he declared, Uioagil
Mr. Bird had not shewn him tbe note at tB|(
time: I am (said he) an undone man; Ik*-
£d wards is a man of substance. This he Mi4
before that the note was shewn to him, or wm§
declaration was made by Mr. Bird, relating tt
Mr. Edwards's being the indorser of this nolii
He said further that he was nut in a capacitf
to pay this money ; and that tliey roust appqf
to Mr. Edwards, who was a substantial aia%
for it. Gentlemen, this was made use of aa#
sort of defence at this time to avoid this thiog^
to put it off from himself by this argooMBti
why Bird should not come upon KinneraliEy
himself, who was uncapable of_payinr hnBf
Iwards,
k
but take his remedy against Mr. Edi
was a substantial man. He was cross-i
mined: tbe counsel for tbe defiendant asJbed
who was the person that recommended Mc»
Hales to him as the borrower of this monev 2
It was answered. That it was sir Bibv Lmu^
He was asked on whose credit he lent ut no^
nej, |h,iialfii'» tc Ur. Edwaada'tf tt vw
WpA, m it mint tiv h) such a ir&ss*
!B, aiNm this Ihenote mts read ^ for it
rivea directly from the hands of the
t flflin, tfattt was vofiicient cau^e to
Mie, and hy it hefore you. Accord -
ptpeara to bw dnte Augmt 16, 1727»
MMiisMfy iMACy nimriug thns :
■liae la pay to Saai«el £dwardi| eiq.
4irft witiiiu tbrae HiOBiha after date,
lif ftw#lfia huulred and aixty pounds,
noBMrad,
-* '* Ttaoxaa KuaEiisLsr."
Ma
BCi the {ndorsemeDt : and there, there
■D the top, ** Pray pay to the order
I there ia a large Diana, then comes,
ae rtofrived," and then there is the
ioB «« Samuel Edvrards." Gentle-
m ibis it is proper to take notice of the
DBS made by the counsel for the prb-
011 the manner of the writing of this
mt. Thev obserre that this must be
pffiom by Mr. Edwards of his name for
Br the nassm^ of a letter free : it ap-
rv probable frum the manner of bis
nrank. « Free ' and not * frank ' is
Alt he makes use of: and upon what
v what remains in this note, they say,
wt top it appears that it must be cut
wmie other note, and that there is an
! irhere thev suppose that some other
BK ; that there is the appearance of
If, not a blot, but tlie appearance of
nder of a lelter or figure on this place,
! appearance of a little dash from it.
say that ' for the' issubsiiituted for
* firec ;• that it appears by the ihick-
le letters, by the ink, and by the man-
ein the letters are put thore ; anil by
of tlie ff which !\ir. Kdnanls makes
ird * ffree ;' and that there is still the
ee of the remainder oFone or botli the
>on this, gentlemen, you will consider
the o and the r have not the appcar-
ome other letters under them, aud bo-
e /*and the r. It is plain upon sight
tne other letters seem wrote of the
Rigth and thickness wIJi the /* and r.
«Gms paler and thinner, ..ud of a dif-
k from the other letters. And then,
!n, the word Mho' is here written at
Yon will consider whether this seems
are been from a nect'ssity to put some
ird to fill the whole compass of the
ree.* Now • the ' seems not wrote at
le time, and with the same ink with
eceired.' If this had liern wrote all at
etime, it is prett}' extraordiuary that it
■ol hare been wrote even. The / is
a strait line even uith * value received,'
I sioks a little, an*] the r comes under.
D oonsider, gent!emen, whetficr there
icicat room, and whether this was the
r patting it so. Tfaese considerations
t we of to make it probable that it was
A.D, 1729.
[254
wrote at difllprent times : if so, it ia most pro*
bable that it was at first * free,* and that th«
otiier worda were substituted aflerwards. 8o
that these are the obserrations as to the manner
of writipg it, wluch you are to consider whe-
ther they are tme, and there be a foundation
for them or not. Mr. Spicer then was called,
who hath been a clerk to Mr. Edwards in th«
Escfaequer between ten and eleven years, but
hath been in his service about twenty- four
years. The note was shewn to him, and h^
teils you, that as to the name, he takes it to \m
the proper hand-writing of Mr. Samuel Ed-
wards, nis master: the J he also counts to b*
bis. Upon his observation and oath, which it
evidence to be left to yon, the word * for ' i»
wrote oyer otiier letters, and he believes, upoa
his oath, that the first word was ' ffree.' Htt
saithflhat Mr. Edwards, vrhen he mdcetb %
frank, makes nse of a ^as in the mauoer that
it here stands. If it was made fbr * valae re-
ceived ' at first, it is pretty extraordinary that
a ff shouM be written, and not a single f as
usual. Wh^ (saith he) it is my maater's inaal
way of writing ' ffree.* And then he saith thai
he always wrote ^ ffree' and not 'frank;'
which is material, as the word *• frank ' might
not so well correspond with tlus alteration. Hs
saith that the r seems visible, and to stand be-
tween the 0 and r. You ^11 see whether
there be the remainder of any such letter or no $
since he aaith that he doth think that the r ia
visible. He tells you, that as he is clerk \m
ftlr. Edwards, so he is acquainted with bis pri-
vate affairs, relating to his estate and the like»
and that he doth not know of any money trans-
actions between his master and either of the
defendants ; that he is so well acquainted \i ith
his affairs, and the nature of his employment
under Mr. Edwards such, that he believes that
if any such dealings had been, it would have
come to his cognizance. He tctU you, like-
wise, that Mr. Edwards is not a person that
nseth to deal this way : it was very proper ta
ask him this, because it is common for many
persons to indorse notes in this manner, m
saith that it is not his usual custom : it cometb
not into his public business ; and, as to his pri-
vate transactions, he never knew him to do it.
They were then going to call a witness to prove
the body of the note to be Mr. Kinnersley'a
hand-writing. Upon this, Mr. Kinucrsfey
took upon him to admit that it was all his own
hand -writing;. So then it is to be taken for
confessed, that tlic body of the note was his
writing. It is written in this manner,
^'Au^ii 16, ir^r.
" f promise to pay to Samuel Edwards, esq.
or his order, three months atier date, the sum
of twelve hundred and sixty poundii, Ihr Taloe
rcoeived, Thomas Kimmebslet."
" -f . li«60.
Well, gentlemen, after this, the cpiinscl for the
prosecution sny, that Mr. Kinncrsley iKith ia
855]
3 GEORGE II. Trial qf Wnu Haks and T. IRnnerdey^
effect confened as ranch as amoanli to what
tliey stand io need of to oonvict bim of thiafor*
)(ery. First, they call Mr. Wrig^ht, who was
present at the exanaination of Mr. Kinnerslev
uefore sir Richard Hopkins. Mr. Wrii^t tells
\ou, that at that time tlie defendant Kinners-
ley owned that the note was all his own hand-
writing ; that Mr. Edwards thereupon asked
bim why he drew the note payable to him,
when there never had been any dealings be-
tween them. Mr. Wright sulh, that the de-
fendant Kinnersley owned at that time
that there never had been any dealings
between them, and likewise that he did not
know Mr. Edwards, nor had, to the best of his
knowledge, ever seen him till then before sir
Richard. But he said, that the reason of his
doing it was this : that he was indebted to the
other defendant Hales in a sum of such an
amount and more ; and that Hales desired him,
the defendant Kinnersley, to write him a pro-
miffsory note for that sum ; that he asked Mr.
Hales whom he should make the note payable
to, and Mr. Hales said to Samuel Edwards,
esq. and that accordingly he wrote the note in
that manner that it now appears in to you upon
the request of Mr. Hales. Mr. Wright tells
yoo, that at that time he had heard what had
Sast relating to the discourse with Bird ; and
e told him, Why you have expressed your-
ielf as if you was a ruined and undone man ;
why did you say that, if Mr. Hales requested
your writing him a note for such a sum as
1,260/. ? Upon this, one Mitford said to Mr.
Kinnersley, You shall not go on to declare
yourself any further, you may do yourself an
injury. This is made use of as a circumstance
by the kin^r's counsel, that Mr. Kinnersley was
going to explain himself further if he had not
been prevented by his friend or solicitor, who
knew the consequence of a confession of this
nature.* Mr. Wright tells you, that at this
time when Mr. Bird was examined, and said
that he had not at that time shewed the note to
Kinnersley, when he said, that how it came to
be indorsed by Mr. Edwards he could not tell.
Mr. Edwards hereupon asked him whether he
knew of this indorsement before Mr. Bird
shewed him the note P That he answered that
he did, but that how it came there he could not
net tell. So that that is the substance of his
confession in that respect, that he did know of
it, though he saiil he knew not how it came
there. Sir Richard Hopkins likewise was
called to give an account of what passed before
him: hesaith that he took minutes of what
passed ; that it was in the latter end of Sep-
tember that be was brought before him charged
with forgery of two notes, this of l,2(jO/. and
another of 1,600/. ; that as to this note, it
seemed to him an altered note, which wan the
occasion of his more strict examination of the
matter. He saith, that he examined Mr. Bird,
who advanced this money, who said that before
he bad shewn this note to Mr. SJnnersley,
when he had only told him that he had a note
•f liif himd ItiX with him for a seciirityi he
answered, I know that yoa have: it
1,S60/. payable in three months to fe^
Edwards, esq. or his ordefy and b indor ■
Samuel Edvnurds. Sir Richard hereapoi^B
Mr. Edwards if he had had any dcahnc-:
Mr. Kinnersley ? Who said that ha h^
Kinnersley also said the same, but said ^ I
drew this note payable to Mr. Edwards ^
request of the other defendant Hales, ti^ ^
he was indebted in' that sum, and warm
that he did not know Mr. Edwards, nor ^
best of his knowledge had ever seen hint b^
that time. He saith, that upon his obse^
that it was very strange that he should ^
such a note payable to a person with wbo^
owned that be had no dealings, and who
an ntter stranger to him, Kinnersley wug^
further to open his mind, but one wSs^
stopt and prevented bim from going
Richard Davis, who is the constable that '>
prehended him, was next called to give an i
count of what passed when the warrant «i
issued out, and given him to be executed. 1
tells you, that because Mr. SJnnenley livi
out of the city, he went to a publk: has
within the jurisdiction of the city, and scnl
porter to desire to speak with uim ; but i
ceived answer that he was not in town. I
enquired when he would be in town, a
went himself and made a pretence of a 0M|
wanting to be married. At first came i
the daughter, and tlien the mother, wh
he acquaint^ with his business: at 6
they seemed to say that he was not at boB
or did not readily say where he was; I
after that he had given an account of I
business, he was carried into the parioi
and then Mr. Kinnersley came to him. i
told him the business of the marriage : t^ <
fendant thereupon asked him several queatKN
and, among the rest, how old the lady to
married was? This is necessary to be mi
tioned, because they have insisted upon it i
proof of his honesty, that he asked whcti
she was of aj^fe or not ? And being Udd t
she was not, then asked whether there waso
sent of relations or not ? If (said he) there
not, I will not be concerned m a thing of t
nature for 100/. He was told that the bi
tlier was with her at the Magpye tovem, i
asked to go thither for satisfaction, but wo
not go. Upon this the constable saith, that
went away, and made it liis business to wa
and see when Mr. Kinnersley came out.
an hour or two he came out, he dogged him
theI\1inories, then when he was come wi
in Aldgate, he told him that he had a warr
against him for forg^ery of a note of ],3^
lie then desired him to go into a house w
him, where he asked to sec the warrant : Ui
seeing it, he said, that if the gentleman I
sent for him he should readily have come
bim. Being asked why he denied himsc
He anstrered, that be was afraid of being >
rested for ilebt, and that Vas the reason of
denying himself when the constable caino
enquire for him. lie then owned that the A
tt f krf wilii% i but jud that he
')m the ndorMmciit came thert.
vilhvhiiwas nid by the coonael,
ly Ai ■iiiMiii, €90ooeniiiig what
Ub bmi hie ezamination bcfoie
Bipkiiii, aod to Mr. Bird at hia
vbn he came to him. Thia
at ta the fact The counsel
go on and aaj, that there
frinM eonrespondence carried on
tva deftnoantay which they in-
■lawiancii to make it likely that
krHB. They called to this, first,
I Bfebi who aaith, that both the de-
wilSBMt froqnantly at hia house ;
" ' I fnmntly came there early in
waoid aometimea walk about a
liae, would ask aometimes if the
WbRothera witboot naming him,
bfw whom be meant, baring fre-
dieai together ; that some time
came in, Halea sitting by
m go by and went to him ;
Eiaaersley came in and went
eite-room into a back room, and
Mlow afier him, and they would
tligiether; Kinnersler sometimes
Rrt at one door, and Hales imme-
artat the other ; that this contioned
• OMMtb or three weeks beibre Mr.
Mcbeosion; that onetime particn-
hlaDerriey paaaed by and went down
sad Ifr. Halea aeeing him, rose
■Mtaot after him ; this, he saith, was
MSth beibre the defendant Halea was
ifi He aaith, that they seldom sat
ifte aablie room, bat went into a pri-
Jobn Brooks was next called, who
Im keeps a coffee- boose io Dnwn-
yHii Westminster. He said, that Mr.
gwfcy osed to come someth&ca to his
jPhsK, send for a porter, and git e him a
flNr Mr. Hales, who hath come to him,
Hhf htte gone into a prJTate part of the
Mm there they hare staid fbr three or
W^^t^ to^ber ; that it bein? in the eren-
n hitfa thought them in the dark, and
Mike serf ant why a candle was not car-
MiaB? Who hath answered, that he had
Mthcm one, bnt they refused it, not car-
Ibleioterropted ; that they met thus about
mm foor times in a month, a little while
plHr. Hales was apprehended . M r. Jane-
1^ was called, who saith, that he hath
Mk two defendants aereral times retire up
bl^|Mlier at hia coffee-house. This, gen-
n,B relied upon, and given in evidence,
ke that there waa a correspondence be-
■ Am about some affairs not so proper to
iMSfsd in public. This is the substance
b evidence on the side of the prosecution :
Ikeesunsel for the king tell you, that as to
^ sf this nature, they must be done in a
'prirate way in order to prevent a disco-
"f it caunot be expected that they would
pmns to eee aoch a thing done ; that the
evidence, therefore, that can be given is
Ju D. 17».
[£58
dremnilaaee. Well, gentlemen, the defen*
danu come upon their defence : they appear
by different counael, and make a separate de-
fienoe. The counsel on the behalf of the do*
fendant Halea insist that there waa a debt du«
from Kinnersley to Hales, for which this not*
was given ; that this doth appear from the ae*
veral declarationa made by Mr. Kinnersley
from time to time. They rely upon this ai
evidence of such a debt for money ailvanced Io
him, and that this note was given by the de-
fendant Kini^ersley for such a debt. Thcv tall
you that-Mr. Halea being a bankrupt, and there-
lore it not being firoper to have such a note in
hia own name, because it would be liable to bo
claimed by the asaigneea in the commission of
bankruptcy against him, that therefore it wan
proper to make oae of the name of another per-
aon ; that Mr. Edwarda waa never affected or
injured hereby ; that part of the monejr hath
been paid, and if they had had a little patience,
as 4001. waa paid, ao the rest would have beea
paid. And tbongh they admit that the mak-
mg of such a note in toe name of another to
advance credit without hia leave was crimuwl,
yet it did not, they aay, really affect or injaro
him. And then to shew that there waa a reo«
son or foundation for the giving of this note^
they said that they wonld call witness that
there waa an account stated, upon which thia
money appeared to lie due. They called Ro-
bert Burkit to it : bnt he saiih that he knoweth
of no auch account, it is all imagination ; thai
his name was made use of without his know-
ledge ; that he knew nothing of any money
ever due between them : so that it w plaui.
that that witness is lost in tlie ezamination ao
to any benefit to them. They said tliat thev hail
ao'rther witness who happened not to lie here :
this is the substance of the defence of the de-
fendant Halea. Kmnersley then comes ou hia
defence. His counsel insist that he is not evi-
denced to be cooeemed and knowing of tbio
forgery ; that as this is a crime of a very hein-
ous nature, and deserves the greatest punuh-
ment, ao it is necewarv that tlie dearest proof
should be given you before you convict him.
Tbey say that bis character likewise rMpiirei
stronger evidence than oilier* ; that his cradit
is more concerned than othem, because the
very ezerciae of his function deptfmls up<Hi hia
credit, witboot which lie will be ol imi um; in
the parish wh<rr« be doth or aiay miiiisti:r. Ami
tbey say, that it appears by tlie evidcnci^ <hi
the side of the prosecution, that Ih' i« ti**y
careful iothe d»setiar|^« «if \\\% ftiucii»ii. tilii^^h
they insist on from his refusal to \i^ < iiuo"!*!**'
in a marriage without a lioeooe and «<'(«•<'" ^ ^
friendH, it Mng contrary to actn «i p«ili«"«»«*
and to the canons of the cburrh. nud ibvi tiiej
«uppnne him as cautious in «iih»t lb*" J?*- ^'^.^
say, timt the thing itself ik ii»>i«l* <*"^ '^^
it IS an innocent and harrrilr«k thrna ; ">*- ^
iierson is hurt by auoti«<r'« «if •»•"!?'' y*
liim a sum of money by aof-li « ii«4r : >'• ' ^^
pemoii, indeed, who r<»«» *«••'*• ■ ^^^ * *****
to an action for the iftottvy, but that than «^ ••
<»■
259J
3 GEORGE II. Trial of Wm. Hales and T. Kxnnerde^^ [
injury done to the person to whom it is marie
payable ; that therefore as to Mr. Kinnersle> 's
subscnbinin' a note fur so much money payable
to Samuel Edwards, esq. especially when it
was done iiprm the recjuest of the defendant
Hales, upon account of a debt which was due
from bini to Hales, and for the oon?enience of
Hales, it was an innocent tliinfi^ ; that Kinners-
ley was to pay Hales so much money, and
riales himself desired a note for it in this name.
They say that Kinnersley might he induced to
do this from the credit and character of Hales,
and from their former acquaintance ; that he
was the minister in his parish when the
partnership Was between him and sir Ste-
{ibcn Evance; that notwithstandinfir his mis-
ortunes since that finit acquaintance, it is
plain that he hath been corres|)onded with
by persons of credit, therefore there can be
DO reflection on that head on Mr. Kinners-
ley. And they say, that as there was no-
thmjf culpable in p^ivin^ of the note, so nothing
amiss liaih happened thereu|ion ; that if Mr.
Hales hath dono any thing amiss, it does not
affect Mr. Kinnc rsley . Though they raise Mr.
Hales's credit at first, yet atlerward they sinic
it, and seem to throw the blame upon him.
Tliev plead also, that there is no evidence that
the mdorsement was upon the note when it was
subscribeil by Mr. Kinnersley. If it was after-
wards (say they) indorsed with or without
authority from Mr. Edwards, it will not affect
Kinnersley, except there be express proof that
he did it. Thev say also, that there is no proof
of any franks clelivered to Kinnersley but only
to Hales ; that he bad not therefore the oppor-
tunity that Hales might have ; that therefore
he is not involved in that circumstance or tiic
inducement hereto ; that I lie proof or evidence
given is nothing nofainst him. And then (say
they) to what purpose bhnuld the note be con-
trived to be inil(M8(^d with the privity of Kinner-
sley, when he hath no manner of benefit thereby.
Hales having received the money ? They ask
the question c\i\ honv^ and thence infer that
Kinnersley could n«)t do this. And they insist
upon it in point of law, that the writing of this
note can be no fraud in him, he having done
what renders him liable to an action. And to
shew that the money was due from Kinnersley
to Hales, they have tailed several witnesses to
shew that there was a foundation for this note.
Mr. Peter Marsh was called : He saith, that
about ten or eleven years ago he brought a
bond of 50/. to him made by Mr. Kinnersley
Eayabletobim. Mr. Hales told him, that Mr.
Linnersley owed him this money, and had
ffiven him this note made payable to* him, which
he desirefl him therefore to get for him. He
knew nothing of the matter, was surprised that
liis name was made use of, and so returned the
bond again. This is insisted upon, gentlemen,
to shew that there were transactions l>etwcen
Kinnersley and Hales. Now wlietlier this
|imvea a debt due from the one to tbe other, or
|iroTM ao extraordinary method of taking bonds
IB tht ii|n« of pcffOM whboai thtir ooiiitat,
Tou are to consider ; especially when ^o« i
Know that if this bonit had been put in mi
Peter Marsh, he would have been liable t
cover the money. Well, then William Cn
iK next called. He saiih, that he reeeit
Janeway's coffee-house about 60/. a debt
was due from Kinnersley to him. He reo
it of the defendant Halei, and Kinner»ley
there with him at that time. He saith,
Kinnersley was the original debtor i^f
money, and that Hales gave him his note i
He saith, that Kinnei-sley had borrowed ol
an hundred and odd pounds ; that he bro
another gentleman to be securitv with bii
it ; that at the end of six months he oouk
get his money ; ttiat he enquired of Kinne
tor it, who led him a dance fi-om place to |
after him for a considerable time ; that a
he was forced to sue for the money ; auc
covered half from the other gentleman ;
he then prosecuted Kinnersley for the i
that then Kinnersley met him with Mr. I:
at some tavern, and then Hales told him
he was to receive about 6 or 700/. within «
three months time, and then he would pay I
He saith, that upon that offer of Hales he
a note of Hales, and a new one of Kinnet
for the money ; and that in February
he got the money as before- mentioned,
received it at Jaiieway's coffee- liOU»e.
he saitli, that some little mutter (about
shillings or thereabouts) was due for
charges, for which he gave him his i
Hales gave his note for the nnyment of t
of Kinnersley 's, a debt of 50f.,*and he gave
reason tor it, that he was to receive withii
months about 0 or 700/. for him, and then
he could venture being security for Kinner
This is a transaction of quite another na
it is so far from proving a debt from Kinne
to Hales, that it rattier proves Hales ind«
, and becoming security for the other. \
\ then John Wells is called. He saith, tbi
i knoweth not of any money due from
i nerslcy to Hales, but that Kinnersley <
: him 100/. ; tiiat afterwardi this money
• |>aid to his attorney, by whom or how he <
• not tell. Mr. Simpson, who is a partner
' Mr. Fowler, is then asked concerning
' borrowed upon some lottery tickets of
j Fowler, and is asked concerning this mi
how, where, and by whom it was ilischar
He saith, that he it as not at tbe shop
knoweth not by whom and hotv it was
charged. Mr. Kinnersley, upon this, b|
himself to one of the !;eiiileiiien of the ,
>and interrogates him how this nmney was
j Mr. Fowler was liereiiptm sworn tu give
, dence. Upon his oath, he saiili, that ha i
knew of any transaction in the name of H
that he never saw hini at his shop. That
Kinnersley there was a transactioo uf ro
borrowed on lottery tickets, but he kno
nothing of E^ules's being conccrnetl. Aa
person is examined whether he ever g;
<note on Mr. Hales's accouiii, or at bis re
paid any mouay ? He saith, that be iie?«
JiiT a Misdemeanor.
lowctfi thtt iny other did. They tell
», that tbe witncMeii for the prosecution
im gnat netsure proved the denial oi'
ioDcrslej of bisknowinH^ of the indorse-
bal the? call tbemseWes for further
itMenoeorit. They cail Mr. John Hayes,
ilh Ibat he was present at tbe examination
ijHieralev before sir Richard Hopkins ;
ibMrime the defendant Kinnersley owned
ijStf the body of tbe mite, but at the
iMt said, that how tbe indorsement came
besald not tel]. He tells you tliat the
I ihac was g^Ten to tbe defendant Kin-
', was after this declaration made by
fcaithen there was an admonition that he
he eaotious in the answers that be japiTe.
drew Grants likewise was present at that
atioo. He saith, that that was all Ibat
illhat time, and that he was notstoppeil
Mitibfd, but onlv a reasonahle caution
im that he should not betoo much in an
•r the like. This is the substance of
made by the counsel for both tbe
It is the right of the counsel for
f to reply. They say, that there bath
I avidence of transactions between Kin-
aod Hales to tbe amount of any such
I the note is for ; that if the note was
rith a design to ^efraud, both mast be
r guilty ; and that it is a very eztraordi-
mg that this note should be written by
mmiey as a promissory note/or such a
yable to Samuel Edwards, esq. when it
itappear, on the defendant's part, that
rat any correspondence between £d-
■d Kinncrsley,'and on their side it bath
isfcd that there was no such correspon-
. that it was very extraordinary if this
IB ffiTeti for a debt due, that it should lie
i the name of one with whom they had
ifY-dealingswhatsoeTer, and of er whom
aid not be supposed to have any power ;
is therefore seems to be only to give a
> the note ; that it could not be of any use
ever without having tbe name of some
nf drcumstaoce and condition to it who
le obligefl to pay the note ; thut this note
ive been thrown upon Mr. Edwards, ap •
bey say) from the declaration of Kin-
, that he was an undone man. If then
if any use to borrow money upon or in
•er way, it must be from the substance of
iwards, and not from the poverty and
icy of Kinnersley. They insist upon
cumstance, and the declaration of Kin-
, that he knew of that indorsement,
Ikiw it came there, be said that he knew
iod further they say, that as the name
'• Edwards's own baud-writing, if that
nd * ffree' was wrote unon tbe paper, it
» before the writing or the hofly of the
It caanot be imagined that the words
et there before. It cannot be supposed
r. Edwards would set his name to the
ftce,' or to any other woid on the back
Me pffomising the payment of 1,260/.,
to him or his order. They
A. D. 1729. [262
insist, therefore, that this name and the word
*• ffree' were upon the pa|ier before the note was
wrote, and that this is a strong and reasonable
evideuce that Kinnersley must be privy lo the
name of Edwanis, and tbe indorsement at that
time. After that, Mr. Kinnersley desired to be
heard, and he was indulgetl : but as to thai you
have been informed, that in indictments for
misdemeanours, whatever the defendant saith
for himself, it will have no further validity than
as the counsel insist, and evidence is brought
for him. Tbe cireumslance, therefore, is very
different from what is allowed when persons
are pn>secuted in capital cases. However, you
have heard how he bath declared in the most
solemn manner his innocence. You are to con-
si<ler whether that is of any validity, unless
there was evidence of such a debt due from the
defendant Kinnersley to Hales the other de-
fendanty whether you will take it upon his
word. Tilts being the evidence on both sides,
tbe first question is, whether tbe indorsement is
forged, because till you determine that it is a
forged indorsement, there can be no prosecu-
tion for tbe publication of it. If it be a true
indorsement, no person can be guilty of the
publication, mncn less can Mr. Kinnersley,
who did not deliver the note: that therefore
lieth upon the defence of Mr. Hales, which is
not made but by the defence of Kinnersley.
You are to consider then the opjiortunity that
tlie defendant might take hold ot from the re-
ceiving of franks for several years from Mr.
Edwanis ; and you will consider whether there
is any clear proof, or so much as the colour of
it, that Mr. Edwanis was privy to an indornc-
ment of this nature, or there was any occasion
for such an indorsement. If no such money
was indeed due, to what purpose should the
note be indorsed ? Upon the best observations
that I can make, 1 see not any evideuce to
raise a reasonable presumption Ironi, that this
was a fair and justifiable indorst-ment. if it
was not an imposition on Mr. Edwards, because
it makes him liable as an intlor^<er for the sum
mentioned in the note, if you should find thaty
yet you are to conttider whether it is fhir to
make use of another's name in a note ; for Mr.
Kinnersley, who by his own confessiiin is a
poor, undone man, and whose living is under a
sequestration, to make a note indorsed, by an-
other iierson who can never be reimbursed by
this |>erson who subscribed the note, it i^ta very
extraordinary way ; though they say that it is
an innocent way of raising money, for a |)er-
son in custody, or liable to it, to make use of
the name of a substantial person in such a iiote^
\t hose credit must be at stake for the money.
And then as to the nature of the note : if it was
only a promiss(»ry note tor so much money
payable to Samuel Edwards, esq. it was not of
such consequeuce, tor then he was not liable :
but he is liable to the payment «inly upon the
iiuiorseinent of such a nuie. Why ihen, gen-
tlemen, you are to consider, wlu'ther thi<i uote,
when Mr. Kinnersley hud wrote it, could tie of
any use in the world unlcs» it w&a iadorsed af«
ies]
$ GEORGE IL Trial of Wnu Hates and Tn KimerJey.
tsrwards. Whr then this note is either a pre-
paration to obtain "Mr. Edwanls's roluntary in-
doraement for a secarity, or an imposition upon
bim. Hath an^ evidence been prod need to
shew a probabihty thct Mr. Edwards would
gire him that liberty to transfer his own insuffi-
ciency and poverty upon him, and make him
liable to Mr. Edwards, which can have no effect
but by an indorsement ; doth not Mr. Kinners-
ley put it into the power of Hales to negociate
this note ? Therefore I mnst inform you, if two
persons contrive together to draw such a note,
And make nse of it, both persons concerned in
the transaction, in my opmion, will be guilty.
Forgery is an entire ract. Though one person
doth one part, and another the other, -both are
^uallv guilty.* Gentlemen, it is material, as
liath been observed, to consider when this in-
dorsement was made ; and if it was a forged in -
dor8ement,you ^vill consider when it will appear
to have been indorsed. You have been truly told
that this can be only known by circumstances :
therefore you are to consider, whether the name
uf Samuel Edwards can be supposed to be set
tliere after the note was wrote. Well then, what
is the proper and natural way of understanding
this transaction ? If there be the name of
a person on any paper, where there is room for
making an alteration, what is natural ? Why,
to transact on the other aide what is necessary
to supplir and make that complete, without
vhich the name would be to no purpose.
Therefore, that is a material consideration $ if
it ia impossible that the name could be wrote
mAer the making of the note, whether that be
not a reasonable presumption that be saw this
indorsement when he wrote this note. Sup-
pose the words only * ffree Samuel Edwards,'
It was not proper to write this note on the back
of it. If this indorsement was made without
bis privity, how came he to know of it when
be came to Mr. Bird ? And upon Mr. Bird's
telling him that he had a note of his left with
bim, immediately answered, ** 1 know that
you have ; it is fur so much, payable in three
months to Mr. Edwards, but how it came in-
dorsed bv him I know not ;" when Mr. Bird
iwearstbat he had not then acquainted him
with the indorsement, nor showed him the note
mt that time. No evidence hath been produced
to shew how be came to know that it was in-
dorsed. He declared, indeed, that he knew
not how it came to be indorsed : bnt you are to
consider, whether that part wherem he de-
clares biy knowledge is to be regarded, or what
be declares he knows not of, A declaration of
this nature will be taken most strongly against
* See Eitt'0 Pleas of the Crown, ch. 19,
•.51.
him. Consider, therefore, whether this
part of his declaratkm be sufficient to disc
nim. If he knew that it was indorsee
should have some evidence upon what ac
it was. As to the rest, as to the eharact<
coat, or Uie like, you are to try bim npc
same law with Hales. I know not wh
habit he wears ahould exempt him Iroi
common rules of proof. As to tbo port
circumstance of his usefulness depend!
his credit, that is left to yon. But the
law is made for one that is for aaetber :
are therefore to consider of it. If this be
indorsement you must acquit both. I
are satisfied that it is not, but the indoro
is a forged indorsement, whether eithe
which of the defendants seems to he |^
You are to consider tbo nature and di
stances of the transaction, and whether
appears any thing to distinguish the one
the other, and accordingly give your v
against the one or the other. If you dei
the note will be given to you.
Jury. My lord, if your lordship pleas
will take the note up with us.
Kinnerdev. I desire to be heard — ^-
L. C. B. Not in case of a misderoeanc
know not any instance in whioh it hath
allowed.
Kinnersley. 1 beg leave, my lord. I
the Lord to witness — —
L, C. B. All I can say is, if you b)
mind to aver or affirm any thing, the <
would rather be irregular than abridge j
any thinif.
Sen. Whituker. My lord, it never wi
lowed; after your lordship baa summc
the evidence, and the jory gating out :
strange Mr. Kinnersley will behave so.
Att. Gen, Is it, my lord, to be allowf*
L. C. B. The gentlemen have insisted
it. You cannot be heard.
Kinnersley, By the living Ood, 1 kno^
thing of it !
CL ofArr. [Calling over the Jury.]
you all agreed in your verdict P
Jurymen, All.
Clerk, Who shall speak for yon r
Jurymen, Our foreman.
Clerk, How say you, is William !
Guilty of the misdemeanor wherewith he i
charged, in forging an indoraeroent on a
missory note for 1,960/. in the name of Si
Edwards, esq. and publishing the same I
ingitto be forged, or Not Guilty }
Foreman, Guihy.
Clerk. How say you, is Thomas KhnM
Guilty of the satd'misdemeanour wbeviwj
stands charged, or Not Gnilty.
Foremgn. Gailty«
Trid^fWmamHaki.
A.D. 17C(k
fj. The Trial of William Hales,* for a Misdemeanor, in ob-
taining from Thomas Bird the Sum of Seven Hundred and
fifty Pounds by false Tokens^ &c. : 3 Geouge H. a. d. I729.
Tbe Jury calM orer agaiD.
te«Mi OyEZ, Oyez, If any om can
I^DICTMCn'.
Hales ttands indicted bj the name
Halea, &c. for falsi? and deceitfully
_ tba ran of 7502. of Tliomias Bird by
^AhttDken, m. a promiaaory note, in these
' MIowiag:
*< Augtat 16, 1727.
• ^ I proniae to pay to Samuel Ed ivards, esq.
Illiisider» within three months after date,
fcanof twelve hundred and sixty pounds,
•^■he rceeif ed, Thomas Kinnersley."
On vhicfa Qote there is the foIlowin|^ ind<ir8e-
"hiy pay to the order of for value
Sahubl Edwards."
iif great damage of Samuel Edwards, esq.
ku To ibia indictoMnt he hath pleaded nut
Wr. Strange, May it please your lordship,
iiaia indictment against the prisoner Wil-
" la Bales only . It seta forth that be, having
IkbpBMessibn a certain writing purporting to
hi promissory note made in the name of
Ihiu Kiouersley, wherein the said Thomas
faniLy is supposed to promise to pay the
Mif lfS60/. to Samuel Edwards, esq. within
te nonths, with a forged indorsement of
Ir. Edwards on that note, did, in March last,
AUj sad deceitfully obtain of Mr. Thomas
> Ini, tbeaoni of 7S0/. by that false token.
K islsid to be contrary to the statute in that
ott nade, to the damage of 8amuel Edwards,
M^ &e. to the breach of his majesty's peace,
^ to the ill examph! of hia majesty's subjects
■fta ease offending.
Mt. Gen. My lord, this is an indictment
VMBst Mr. William Hales, for obtaining a sttm
^9tamey by the false token of this note. For
ihwa will only call Mr. Bird.
Mr. Bird sworn.
4ll. Gen. Mr. Bird, look upon the note, and
fifSiii account who brought it to you, and
vbat money you paid upon it ?
Bird. Mr. William Hales brought it to me
M March 20th, last.
Att. Gen. What did be say ?
Bird, He said, that at the request of a gen-
flnnan, I was to lend him 760/. upon that note.
dtt. Gen, Did he produce the note?
* bsethe preoadiDg and folbwing Caaci.
Bird. Yea, Sir, I had it then of him.
Att. Gen. Waa it then indorsed as it is now f
Bird, Yes, Sir, in the manner as now.
Att. Gen, How much money did you d«*
lirer him upon ii?— Bird. 760/.
L. C B. Pengelljf. Diil you deliver it, when
he delivered you ihis note?
Bird. Yes, my lord.
Att, Gen. Should yon have let him bav#
this money if he had not produced tbia uoteT
Bird. No, Sir.
Att. Gen. What waa it paid in?
Bird In one or more B^ok- notes.
Seri. Ej^re. J submit tbia, my kwd : they
have laid ibis indictment but singly for obtain*
invr money, whereas in the former they Iayt4
doubly for obtaining money, or other valuable
things. It lietli therefore upou them to prove
that this Mr. Halea did receive in money.
Though 1 know that generally Bank-notes are
received as so much money, yet 1 know not
that according to law they are reckoned money.
They should therefore have laid it for money
or other valuable things, it bein^ two Bank*
notes, and not money : and in tbia manner, I
supftose, in case of a tender of money, it is not,
as I apprehend, thought thai a tender of Bank-
notes is a sufficient plea : Uie consequence then
is, that the giving of 760/. and the giving of
surh notes is not tantamount. They ought to
indict him as the fact really was.
Att. Gen. Do you know, Mr. Bird, of the
receiving of this money ? Did he complain of
his not receiving of this money ?
Bird. No, sir.
Serj. Whitakcr. Did he pay buck any of the
money? — Hird. Yes, Sir, 400/.
Serj. Whitaker. Was it U|»on the account of
those HHnknote:^? — Bird. Yes, Sir.
L. C. B. Then when he paid you bark that
money, did he complain that he had not re«
ceived it ? — Bird. No, uiy lord.
Serj. Eyre. Fray, Sir, i*id he say that he had
received it? — Bird. Yes, Sir.
L. C. B, Mr. Serjeant Eyre, I supposa you
do not insist upon it us necessary that be should
receive so much money of Mr. Bird, if he
received tlie produce of those notes it was suf-
ficient.
Serj. Ej/rc. My lord, I apprehend that though
he dill receive the money from the Bank for
ihone notes, he received not the money from
the hands of Mr. Bird. He received, indeed,
what I should have taken lor money. Es|M)-
cially as the act of parliament hath added, * or
any valuable thing,' as je\tels or the like. I
think it should have been so laid. 1 observo
the words used are, * by colour or means of a
fahio tuikea.' i woukl aak, suppose Mr. Bird
«67]
S GEORGE If. Trial of fTm. HaUt and T. KinnenUy, [968
bid oTiterei] him to receire it of his cashier, or
scut llie note to his goldsmilh, whose pBymcut
would it hare been i Suppoue he had sent him
tu llie Bunk to rec«vc that bioiipy before lie de-
lli«red up tlie note, certainr}' he had obtiiaed
the moony by colour or means of that note.
Hy lord, I admit that if it had
hcen paid by his servant or b^ his cashier upoD
a Dole drawD upon him for it, I lake it that it
Kiighl have leen laid either way.
^rj. Whilaktr. The Bauk in that respect
are but caabiera for the geutlemep that haie
Uieir notes.
!4erj. £yre. The oibec indictment kid it
doablv.
Judge Hi^tiuUt. Though they mi^t do that
by wav of caiitios, yet it might hare heen laid
ibe other way as ibis is.
L. C. B. Gentlemen of the Jury, yon are to
COD aider whether tbe indorsement on tbii note
was a forged indorcement ; for if it was uot
forged, tbe defendant cannot be said to obtain
Ibe money by a false token. And further you
are to consider, aa he obtained this of Hr.
Binl by thii false token, whether it ever came
to his hands Or not. You are to coiuiiler apos
ibe erideuce that be never cumulsiued that ha
had not received the money fur iboie bills, but,
on the contrary, paid back 400i., jiart of iba
money, wbelber he would have paid it if ha
had not received tlicnianey. Therefore, if yoa
apprehend that indorsement of the note was not
a forged indorsement, or that tbe money was
not |Mid, you are to acquit bim. But if yon
Judge that'tbc [ndnracmont upon the uule wu
forged, and the money Jiaid, whtlber it was
paid hv Mr. Bird in ninney, or in billa um
whicb be aflerwanis received money, I Ibiok
that thai makes no difference.
Jury called over.
Clerk. Are von all agreed in yonr TCrfidf
Llerk. Are \i
Tury. Agreed.
CUrk. Who sL
CUrk. Who shall speak for you T
Jury. Our Foreman.
Cltrk. How aay you, la M'illiam Haisi
G uilty of tbe misdemeanour whereof he standi
indicted in obtainiutf a sum of ntoney by thil
fidK token, or Not Guilty r
Fertntan. Guilty.
476. Tlie Trial of William Hales and Thomas Kinneuslet*
Clerk, for a Misdemeanor, for fraudulently forging a Pro-
missory Note, &c. in the Name of Samuel Edwards, esq.'
for Sixteen Hundred and Fifty Pounds, and publishing the
said Note, knowing the same to be forged : 3 George H.
A.D. 1729.
Jury called and atrom over again.
Clerk. OyEZ ! Oyez ! If any man can
joform, Sec,
Ikdicthext.
Gentlemen of the jury, William Hales and
Tiiomas Kinnenlry stand imlicled by the
names, &c. for frauJuleolly forgini; anoieora
writing, purporting to bea prumiisory note, on
the Snd of March, in ihe first year of bis ma.
jelly's reign, in ibe words following:
" I promise lo pay to Mr. Thomas Kinners-
ley, or his order, within six monlbs alter dale,
(he lum of sixteen hundred and GDy pounds,
for ibe value received, Simuel EnWABOs."
and Icnawingly and wittingly publiahing of this
aaa tme writiog, knowing it to be to forged
and couaterfeilM.
Hr. Straoife. May it please jonr lordihip,
, and ynu genllemen of Ibe jury, this is an in-
dictment Bgainsl the two prisonera William
Thomas KiDncreley
a forth, that they being persona of ill gery of ihii note wai by the same opportunity
' ' ' " lo deceive Hr. Edwarda, taken by Mr. Ualea, in eoqjuuclinn with 1*
Kionenley, that ibe former waa. It bath bt
* 8m the piMfdigy and f<rflotniig CiHii
Sec. onlheSd of Marcb, in thefirst year of his
majesty's reign, did forge a writing porporling
to be a promissory note, &c. The mdictment
further aela forth, that the defendants did like-
wise produce end publish IbltipromiBSory cole of
Mr. Edwards's Itir 1,650^ i tlinl knoning this
to be a Ibrged note, they did publish Ihe said'
note liir a true one. Il is laid in oilier words,
that they forged a nole of Samuel Edwanls's,
wbereby be ia supposed lo prorai^ to pay lo
Thomas Kiimerslev. Hitliio six months, the
sumori,660f..&c.' Toalllhese facts they boll)
have pleaded Nottiuiliy.
All. Gen. My lord and gentlemen of iht
jury, I a[n counsel for tbe king. Oeotlemeq,
Ibis is an indictment against both tbe de-
fvndants, fur forging a promiKsory note in lb*
name of Saniuel Eilwards, eMj. for 1,650'., pay-
able to Thomas Kinnemley, or order, wjihin
six miiDths after date, and aliio fur publishinc
Ibe same. And, gentlemen, lhou)[h il is lai3
•everal ways in iTie indiclmeiit, tlie note ii
one and tbe eanie. There arc nol several note*.
Hales and Thomas Kinncrs^ey. This indict- j Gentlemen, it will apnear to you that this for-
menlseta forth, that they being persona of ill gery of this note waa oy the same opportunity
fame, and intending to deceive Mr. Edwarda, uken by Mr. Ualea, in eo^juuclion with Hr.
. Kinneisley, that Ibe former waa. Itbatbb —
I obMntd alraady, thai in nicf of Ihii k
W]
far a MitdemeHnor,
A.D. 17S9.
[S70
fieti are to be proTed oDly by circumstances.
PluD tail positive proof is not to l)e expected :
brtioch circumstances speak the truth often
BOicpIahily than the other way of proof doth.
As to II r. Hales, Mr. Edwards being too
•bligin^ to him, he made use of it to much the
■BB purpose as in the fbrmer case. But
ilii«not DOW to indorse, but to make a pro-
'.Ed-
nute fur 1,650/., payable by Mr
vwdi 10 Mr. Kinnersley, within six months
lAff ^te, and dated March SO, 1728. And,
imJfiDen, this note is signed on the back with
^ land- writing of Thomas Kinnersley. The
Biooerof this forgery will appear to have been
ike ibe other: but it will appear on the very
Uet of it manifestly a forgery. Gentlemen,
the note is wrote on a very small piece of paper,
vbich appears plainly to nave been cut oil from
umber paper. And, gentlemen, the words,
* hx the value received,' are uot wrote upon the
he with the other words, but a little below the
kM. The words ' for the' appear done in the
miie wanner as in the former note that before
caoe under your consideration. Here \s a ff"
neb a» before, and as Mr. Edwards always
iMtb, then an r which appears to be of the
wae hand, then an o crowded in between them
«bicb seems net of the original writing. One
tf Ibe u^a is made to serve tor the first stroke of
Ihr V, and a long stroke between the two ee'sy
tbro'ifae other e makes up the word y^. Then
'rihie received' is wrote in another manner of
bad. This seems to be the nature of the for-
fery; and none can doubt it a furt^ery that in-
apceia it. This appears to be done from n frank
coier i>btained from Mr. Edwards. And tliis is
tMrtbinir rcmnrkahie : it is Koinethiii^ odd
tini'fortlic vaiuf; received' should bc^ v.iotecn
i&o:.W line. It is plain that the words arf ret
ibssMli] because of the word wrote h t^rc, and
^thejf be«jriiiDir.g anothor line may make
the better appearance. This note is made pay-
able to Mr. Kiunerslry. He was an absolute
■tnoger to Mr. Edward?, as it appeared in the
P'Tmer case. There wns no dealing between
Ur. Edwards and Mr. Kinnersley, nor no co-
bur «it any such dealing!, hy which a debt of
iQch a sum as this should b(Vnme duo from Mr.
£dvards to Kinnersley. lint, gentlemen, this
Mtf thuH made for l.ti'tOl., payable within six
Bonttisfrom Mr.EdwanIs toKmuersley, with-
out ai!V ilt-alin^s between them to irivc'a foun-
duiun tor it, in the manner 1 hnve shewed von,
»nifh ts sufiicient to make it appear to any
a foitf-ry, is indorsed by Mr. KiunorRley.
That u ill appear a clear evidence of the forgery
^jf by Mr. Kinnersley. No man in hi*
KB^s would do this. If a for<;oi| note for
IjSoO/. waii made in ihp name of any person,
nd appeared in all these rircurnstaiicrs of a
pkin P>rgery, no man in his senses, and desit>'n-
iBKioact a fiair part, would make an iu'lorsc-
•mt tbetvtu. No other purpr»se. thfrrefore,
Kcms aimed at in the indorsitu; but to ^vi the
Metifoiog. If such a note wns olftTcd to a
fur sad bonett uian to indorse would he not
■inkat it ? Would he evor have indorsed it ?
Therefore, this indorsement is a strong evidenes
against him. The use made of this note, thui
forged and indorsed, was this : it being in th«
hands of Mr. Hales, Mr. Hales wanting a sum
of money applied to one Mr. Thrup, dckiring
him to lend nim bis note of 400/. Upon his
doing tliis with difficulty, Mr. Hales deposited
this note as a security tor his money, and here*
upon this note continued in the bands of Mr.
Thnip. Gentlemen, upon the discovery that
was made of another forgery, whereupon Mr.
Hales was apprehended, there was a suspicion :
hereupon Mr. Edwards, being informed that
this note was in the hands of Mr. Thrup, en-
quired of him about it. The thing upon this
appeared, and Mr.' Kinnersley thereupon was
apprehended and carried before sir Richard
Hopkins. At first he seemed willing to make
ft discovery : afterward he went back, and de-
nied ^I thmk) what he seemed before to have
owned: that will be proved to you. I think
that this will appear plainly to have been ft for^
gery, and to have been done by Mr. Hales and
Mr. Kinnersley.
Serj. Whitaker, My lord, we will go- on in
the same method as before, by calling two or
three witnesses.
Thomas Maddox and Anne Clarke were
called, sworn, and deposed as before. — As ftlss
Mr. Booth. Vide the preceding Cases.
Mr. Charlton Thrup sworn.
Att, Gen, Look, Sir, on that note, and ttH
us when you first saw it before.
Thrup. On May the 22nd.
Att, Gen, Who brought it to you?
Thrup, Mr. Hales.
Att, Gen. What did he say to you f
Thrup. He brought it to me, and desired
me that 1 would give him on it three notes of
500/. I refused him at first, alleging that it
wns not for my credit. At length 1 put into his
hand a pnunissory note for 400^ payable
within six months.
Att. Gen, Look on that note and see whether
it now is in the same case that it then was.
V/ns the indorsement then upon it ?
Thrup. 1 cannot say : for 1 took no notice of
the indorsement till I delivered it to Mr. Booth
at the request of Mr. Edwards.
Alt. Gt'H. fn whose custody was it till you
delivereil it to Mr. Booth ?
Thrup. In mine. Sir.
Aff. Gin. Did yuu make any alteration in
it.** — Thrvp. No, Sir.
Att. Gen, And \^hen you gave it to Mr.
Booth y(»u mirided the indorsement, did you
not? — Thrup. Yes, Sir.
Att. Gtn. How came you not to mind it
b**fore? What security was Mr. Edwards's
note if it had uot been uidorseil ? .
Thrup. I had such an opinion of Mr. Ha^es
that 1 suspected uoiliiu:^, and therefore (rave
him the note ; I did not think he would have
been guilty 'tf so vile an action.
Att. Gtn. \\\\v\\ wui it that you delivered
this note to Mr. B'joih ^
fvr a Mudcmcamr.
ka«a(benlliat were mule, llmtthe
M wtiuea nith n secretary e, hut ibe e
'•■^ witicti plainly mpri* 1u answer lo
>ad, anJ aliaw that iLal is
H(, Tfenot Bird tvato,
iluCtn. Sir. wbose lianii i> lliaC?
to^lir. Kinaenley. »ir, owncil that to Le
JcAm. W«i it (hpirril by y<ia In Mr.
fapiliy at tbal lime wbcD he on ned il i"
■aw, f ci. Sir.
laarttrf. And did I own it. Sr ?
Il 6m. Why, you owned il in court.
, I b*^ your pardon, Sir ; t did
d ll.aL
(i>ic thai unte Id the Jury lu
I wilb Uie oUiVr uote tkat it now
J, Witlnktr. Blr. Uneoln. those rece>|ili
•«diyM pnHlured, <lld Mr. Kinnrraley ac-
lalhr KM* llinn .'
Iimh. f MW him write tlietn all.
tmiWkHaktr. Sbrwtliem lo the jury.
Ii^« Bityaeldi. Oenltumen ol'lb« jury, in
tami yaw will Sad anine receipia wrote- by
Mt. liwmity, which Mr. Lincoln sHcars
nhlanrf; tW he luw him write then) all.
Jti. Otm. TIm tiCKt wiloess that we will
iitMlui|i«ariTi([norThoinas Brooks, who
WMttMlM,
Hir Rjdtard Uopkutt ttvoTti.
M. Gtn. 8ir lliohard, we muat trouble
Cia p>e an account upon nhal accounl
KaMialcy wta brunglit before you, and
lb a- Jln-Inoi. Itc waabrnnghl before mc
«^in...,i.,i,., iiu« of l.^iOOf. and tills note.
V- lien he WIS before yon, was
.- ular nenlioii made of this nole
'II. It WM giren to me to
\: \Mvn\ty about il.
- f Ridtard, can you recdieci
lUe note r
" I M. I made nn mark upon it:
t IwOeve ibat lbi> was"
i Otn. Wat it abewed
f
L B^kiM. Tliii
" latKise Sir. Kinoerslpy oiioo. I
, ifit, and il seeninl lu me to be a
Bafbrv I could aay any lliinj^ lo Mr.
■ ■ leMilford there.
what I
' Hold, 8ir(«iid be),
■or hand.' I titnuglit
> |tinice ol peace. I
1 . 1* this your hand
1 I the niher Tiof in
I'Telbre lo reoolkct
iliat ibry «wi\ied
A. D. 1729.
Mr. Strange. 1 Ibink lie Offoed the one In be
Ilia hanil-wrilin^, and tbe olher not. I aik.
Whether ihat wliieb he did own, Has owned
before that Mr. Hitford tntemipled him, or
after f
mr R. Jlopkint. It waa before. Upon tlial
Mr. Mitfonl interrupted him.
Serj. Wkitaker. Upon the quesltnn, when
enquiry wa» made whether he had bad any
dcaliii^B will) Mr. Ednarils, what did be aay T
Sir R. Hvpkini. Both Mr. Edwarda and 1
asked him, whether he erer had had any dcal-
ioffB nilh Mr. EdwiinU? To which lie re-
plied No, be nerer had hail any, nor erer toth«
best of bia knowledge had seen him before. 1
llirn asked him bow he came l« draw ibat
n«te payable to Mr. Edwarda, when there
neitr liad been any dealings between him and
Mr. EdivnntH f He answered, That be did it
at the re<)ii(-Kl of Mr. Halea, to whom be wa*.
indebted in that aum, and more.
Judge tUynoliii. The lirat question I sup-
pose was (i^iierul, whether there had been any
dealings between lliena i* Aflerwaida, when Ihe
noles iveie tliewn liim, he owned ibe one,
and denied the other. Was it not ao f
Sir R. Ihpkmt. Yes, my lord.
Alt. Gctt. The noxt wilBcas that we shall
call is Thomas Bab, to shew lliai there was a
Thomns Bai swdid. and deposed as before.
KinneriU<,. Sir. di.) ire ever call for pen,
ink and paprr ? — iiab. No, Sir, ncter.
Mr. Brooki aworn, depoaed an befora.
Kinnerilfy. There could not be much dnn*
at night without a candle-
Broah. No, Sir ; but you had been there a
considerable time belbre.
Mr. Wright Bwom.
Serj. WIdiiiker. Were you present, Sir, at
tile eiiRiiuatian of Mr. Kinnersley before air
Richard Hopkins?— ll'rifAt. Yea.Sir.
Serj. Wh'lakir. When Mr. Edwards asked
him, whelber there had been any dealings be-
tween them, what did he rc|ily T
Wright. He replied, that Uiere nerer had
been any dealing between them, and that h«
nerer bod WFn hiiu till that time.
Serj. Wfiilaker. Did you obaeive any inter-
ruplion?
Wright. Mr. Kionertley was aayioi;, I will
tell you all if yon will give me trate. Hf.
Milfard laid his hand opon him and said, Hold
your lonffue, be careful what vou say.
Serj. WAilakfr. I ask whellier be'bad there
related any thing aa lo the note now Id i)Ueninii
before the Interruption ?
Wr^ighl. He had declared that that nnta
Kintitritey. I beg leave In speak, my lord.
Both sir Rii-hard Ifopkins ami Ihatgentlemaa
bnte made a mialnke. Mr. Kdwnrd* asked
me. How olt have von viaited Mr. Hat««i»
875]
S GEORGE 11. Trial of Wm. Hates and T. KinnenUyf [871
New|(ftte ? Upon ibis it was ihat he said. Hold
your pence.
Serj. Wkitaker. Wbat was the question that
was asked Mr. Rionersley, when you say that
Mr. Miifbrd interposed ? ^
Wright, I cannot say what was the ques-
tion that was asked immediately before.
8erj. Whilaker, But you say, that it was
af\er that Ive had denied this note ?
Wright. Yes,8ir.
KinatTM/ey. J would only ask, Sir, whether sir
Richard Hopkins disired me to hold my tongue
as well as Mr..MiU'ord?
Judge Rejfnoldi. Did he hid Mr. Kinnersley
make no discovery f — Wright, No, my lord.
Kinnerglejjf. No, my lord: But he hade me
take the gentleman's advice. 1 appeal to sir
Richard.
Sir Richard Hopkitu, The gentleman hath
appealed to me. I take it that the question is,
Whether I advised him to take the gentleman's
advice P It would be very strange that I should
reprove Mr. Mitford for misbehaviour, and
vet should at the same time advise you to take
nis advice.
Wright, Sir Richard asked Mr. Bird, whe-
ther Mr. Kinnersley owned that he knew of the
note being indorsed that was in his hands ?
He said that he did. Then he was asked when
and how he knew this ? This was before Mr.
Mitford interposed.
Judge Reynolds. You have appealed to sir
Richard Hopkins, that he advised you to take
the gentleman's advice. Sir Richard denies
this.
Kinnersley, But he cannot deny that he
said, Take your friend's advice«
Mr. John March sworn.
Serj. Whitaker. Were you present, Sir, at the
•xaminatioii of Mr. Kinnersley before sir
Richard Hopkins ? — March. Yes, Sir.
Serj. Whilaker, Pray, will you give us an
account of all that past then* at*^that time.
March. My lord, I was nttending upon sir
Richard Hopkins as his clerk, when Mr. Kin-
nersley was broufifht betoie him with relalion
to these notes. \Vlien th«) tixst nou? was pro-
duce^l, he was a^iked, whether that note was his
hand- writing or mil ? To n hich he answered,
That it was. When that was gone ilii*ough,
the second note was produced, being a pro-
missory note made in the niiinc of i^fr. Ed-
wards payable to Mr. Kirinerslt-v. When that
note in the name of Mr. Kdwanis was produced.
we perceived on the back nf it the naun* of
Mr. Kinneniley wrote. Mr. Kinnersley having
denied this note, sir Richard, upon comparing
the name on the liack of tnis note, with the
Other note which he bad owned to be his own
hand-writii?!^, said to him, *^ 1 would have you,
Wr, consider very well whether you did not
write that too: tor it is Tery like that wliich
jrou have owned." Upon that Mr. Alittbrd
interposed.
Heru Wkitmktr. What was it thai Mr. Mit-
fiinlaMiayf
March. Mr. Mitford apoD that said, <• Hr.
Kinnersley, 1 woubl not hare you anawrr that
question ;" or to that purpose.
Att. Gen, Did sir Richard Hopkins tdfin
him to take his friend's advice ?
March. No, Sir.
Alt, Gen. Did he reprove Blir. Mitlord fit
interjposing ?
March. Yes, Sir. He desired him to h
quiet ; and told him that he would atk whil»
ever questions were desired, but desired thatli
would not interrupt. '
Att. Gen. Was his denying of the Dtli !•>
fore or after the interruption ?
March. He had first intermpted during lit
examination on the Grst note, and he nfteriiMl
interposed during that on the second note.
Alt. Gen. Well. But I ask you u toAi
second interruption, whether it was bcfim •
after his denying his hand ?
March. It was after.
Serj. Eyre. You were saj^ing, Sh*, tbttnr
Richard bttde him recollect himself, and d**
aider well whether this was not his hand tm^
for that it was very like that note which IM
had owned to be his own hand-writing. Had wtt
Mr. Kinnersley before that said, that be M
not sign that note ? — March. Yes, Sir.
Att, Gm. We rest it here, my lovi, irf
leave the considemtion hereof to the jury.
Mr. Mather. 1 would ask, wbcihcr Mr.
Mitford's advice was not that he shoeUl Itf
speak too fast ?
March. No, Sir; it was that he shonii at
answer to that qiicstiun.
Kinnersley. They contradict one nnote)
and Mr. Bird will swear ahy thing.
3 xk^QG Reynolds. You may prove that ts^
his character if you can ; but without that yli
oun:ht not to aver it.
Bird. It is well known, my lord, wbat Of
character is. 1 have persons of good OfsA
that have known me ihLse26 years: I but
never fu hi tied my word.
Mr. L(u'y, My lord, 1 have nothing msteriiL
in ujy instructions ; and therefore 1 shall not
trouble your lordship.
^i:\'y'Eyre. My lord, 1 am counsel for Mr.
Kinnfrstey. I admit that they have profsi
tiiat there wos an intimacy between them. It
is detrimental to niy client that there was rack
an actjuaintance when the one was parishioMr
formerly to the other, and that this acquaial^
ancc was ki^pt up to the last : but it doth Ml
follow that they arc to be coniiiilered as onsi
Jf Mr. Hales be never so gniUy, it doth nSl
appear that Mr. Kinnersley is guilty. AsM
this indictment, the charge is forginfi^ a note h
the name of Mr. Kd wards, and indorsing thi
same. It is admitted that Mr. Kinnersley kafi
no acquaiiitance with Mr. Edwards : but ei
the otlier hand it is pretty pUin, by Ike Cfi^
dence that hath been given, that there
acquaintance between Mr. Edwards and
Hales. They were near neighbonrs:
Edwards hath indulged him with innknfti
several years. Mr.Uakiisaiiiaaimisr
Jbr a Misdemeanor.
Rr BUoy jnn, bath bad a commia-
aakniptcj awarded ai^inst him : It ia
ml lor attcb a perann to deal rather in
pmoD'a name than in hia own ; if
there be an intimacy between Mr.
i Mr. Edwards, Mr. Hates should ap-
r. JSdwarda, and he upon his request
ife bim such a note, I do not wonder
fentleaian of character should indorse
ile ainftied b^ a person of such figure.
^ MCIB very unnatural, that afler their
■iDtance a note pa3'able to Mr. Kin-
w trust for Mr. Hales should be in-
' Mr. Kinnersley : This may be sup-
ecate, if actually he did indorse the
do not see why he may not be sup-
easily imposed upon as the other gen -
iz. Mr. Thrup. Ji is not so plain a
(that Mr. Thrup, who is a gentleman
My could discern it. Why must we
hen that Mr. Kinnersley roust dii-
If then Mr. Hales is iruilty of the
it doth not follow that Mr. Kinnersley
W. As to the other point, it is no
bat there should be the name of Mr.
ay oo the back of the note : Any that
rge a note will not scruple to forge
MBCOt. It is as likely as possible, and
that would forge a note in Mr. £d-
mme for such a sum, may be as easi-
aed to forge an indorsen^nt on this
low have tliey proved that it was in-
f Mr. Kinnersley ? Two or three gen*
ave been produced as witnesses, that
n his hand several times, and from
itade of the letters they believe it to be
: But there is such evidence to be
f given of one man's writing like ano-
It a similitude of hands is not to be
I at. It is not to be wondered at that
rould be guilty of forginjif the whole
aid indorse it : VVhtMher there is any
tin the hand between the writin(;s that
Q produced and this note and indorse-
jiit be left to the jury.
lieynoldf. Have vou any witnesses?
rs/ry. I beg a word, my lurd.
Reynolds, Not till we have heard the
at the counsel say.
lather. I take notice, my lord, that
tth been a variance among the wit-
I to what past at bis examination he-
Richard Hopkins. The only caution
I given him was, that he should not be
ID bia answers, as your lordship hath
e) thought him very rash in his con-
r. We shall only call a witness as to
Rev. Mr. John Haya sworn.
Imtker, Mr. Hayes, please to give my
the jury an account what passed as to
of 1,6M)/.
• When this note was produced before
ifd Hopfcios, and shewe<l to Mr. Kin-
spannewing him the name on the
the Mtc^ he abaolutely denied it to be
A.D. 1729,
[278
Mr. Mather, Did you hear Mr. Mltford in-
terrupt ?
Hayes, I remember that there was a dispute
between sir Richard Hopkins and Mr. Miifurd.
There were minutes taken of Mr. Bird*s exa-
mination : u|>on the reading these minutes, Mr.
Mitford apprehended them not to be riu^htly
taken accordiusr to the evidence that was given.
Upon this Mr. Bird was re-examined, and then
there was another question proposed concern-
ing Mr. Kinnersley's going to Newgate to
visit Mr. Hales. 'J^hen Mr. Mitford again in-
terposed.
Mr. Mather, Was that the reason of the
interruption ?
Hayet. Yes, Sir, I believe it was.
Mr. Mather, Was there some other part io
which he had also interposed ?
Hayes, Yea, Sir.
Mr. Ward sworn.
Mr. Mather. Sir, were yon present at the
examination of Mr. Kinneraley before sir Rich-
ard Hopkins? — Ward, Yes, Sir.
Mr. Mather, Give us an account of the in-
terruption by Mr. Mitford.
Ward, Mr. Kinnersley was examined as to
the note of 1,260/. : Mr. Kinnersley being
examined aa to that, there happenc^d some
words t9 pass between bim and Mr. Bird:
after some hesitation and dispute, he having
acknowledged that note, it was put down in the
minutes. After that he was examined as to
this note of 1,650/. : Upon his denying that it .
was his hand, Mr. Kinnersley was askeii some
question by sir Richard Hopkins concerning
somewhat that he had formerly said ; where
upon he desired to be exantined in the c(mrt
of aldermen. Mr. Mittord hereupon desired
him not to desire this.
Mr. Mather, My lord, the reason that we
bring this witness is to shew, that he had con-
fessed all that he could at that time, and there
was no resison therefore for Mr. Mitford to inter-
pose for the preventing Mr. Kiunersley^s mak-
ing a discovery.
Kinnersley, My lord, when tliis note was
shelved me before sir Richard H(»pkins, it was
the first time tliat I ever saw it : I therefore
denied it to be my hand ; hut l»v looking upon
it more closely, 1 own ihut it is like my hrnd.
Thoui^h nonv can oblige me to s:iy any thing,
I would he ccntent to he examined ; and thf>re-
fore have, though not regarded, stdemnly
averred ihat 1 was not privy to his getting of
that note or money. As to the ottier note, 1
owed him at that time the 1,260/. ; I gave him
that note for it, and would not uilh tha* 8(deiri«
nity say that it is not mine. He hath got it
sonte other way indorsed: Jiut as to ttiis note
it is not mv hand. Had !\Ir. Hales briMit;ht
Mr. £dwards*H n(»te to me, and desirinl me to
indorse it; though 1 own that J tinnk that it
hath the marks of forgery, yet if Mr. Thrup
and others were imposed upon, why mi«r|it not
1 ? Why should I suspiict him more than
others f I own that I bad a great contidei;c« inr
S79]
5 GEORGE II. Trial of Wm. Hales and T. Kinnersley,
liim. SuppouD^ tbis, will yon ooDdemn me
for an unjust thing ? I take God to witneM,
that I nefer set my hand to that note, nor nefer
took any money. I beg pardon, I will say one
word more : the ipentleman hath taken notice
rightly that I have spoken rashly ; it if an op-
pression, and the wise man saith, that " Op-
pression will make a wise man mad," which b
worse than rash.
Att, Gen, My lord, be bath intimated that
tliis is an unjust and oppressive prosecution : I
submit it. Proper eTidenoe hath been given,
and be hath replied to it by his counsel. The
counsel suppose, that it' the whole note was Mr.
Hales's hand-writinfift it was Tery likely that
lie would not scrupfe the indorsement. Mr.
Kinnersley himself seems to adofit, that for
aught he knows he might have indorsed snch
a note; but the turn that he gives it is this:
If such a note was wrote in the name of Mr.
Edwards payable to him, he might indorse it,
being brought by a creditable and nonest person.
If a note was made payable to him by a gentle-
roan of such figure and character, and so
brought to him, be thinks that he might indorse
it, and would ao have done : But it is impos-
aible that it could be fairly done ; there must be
something fraudulent in it. The evidence on
the side of the king shews, that there must
have been a conspiracy between these two per-
ions to defraud several persons : As the other
note was, without any colour for it, made pay-
able to Mr. Edwards, his name being indorsed
upon it, he beibg a person of ability to credit
the note ; So this second, on the other hand,
without any foundation also, because no colour
of dealings between them, is made in the name
of Mr. Edwards, payable to Mr. Kinnersley,
and Mr. Kinnei-slev s name indorsed. Why
sbuuld Mr. KiunerBley's name be put to it, but
only to give a currency to this note P When a
note is made payabli^ to any person, it cannot
be negociated by any other without his hand
being put to it : His hand therefore was not so
much to give a credit to the note, he being a
man of no substance, as to give a currency to
the note, it being in hb name. When that
appears to you, it is (I think) sufficient to con-
«moe yourjud(;nients tliat Mr. Kinnersley is a
gartncr in this forgery, otherwise be would not
ave indorsed this note in these circnmstances.
Serj. Whitakcr. My lunls, it is very extra-
ordinary for a person to pretend such a note
belonging to him, that never had had any deal-
ings with Mr. Eiiwards. What proof hath he
given that he did not indorse it P What colour
IS there to say that this is a rash prosecution ?
Kinnersley, BIy lord, 1 beg a word. I say
not that it is rash, as to the whole prosecution :
but I never was privy to any wickedness in
this note, nor in anv other: If I had, I would
never have appeare<f here in my ^wn. My cha-
racter ought not to exempt me if 1 am guilty ;
1 ought to abstain from all appearance oif evil :
Wlm I have forfeited that character, 1 desire
to live no longer among mankind. I asked
Mr. Uaki M what acoaimt I wu mmtfntfmA
whether there were any note of mine
said. Yes ; there was a note of 1,650/. p^
by Mr. Edwards. Is it (said 1) a true
Is it wrote by Mr. Edwards P He aha
head and said. Just as true as the oth
asked him whether it was indorsed P To
he replied, Yes< Had I known, my lor
the note was indorsed, I need not nave
Mr. Hales. He b ready to do me j
though he must thereby take it upon hi
Your lordship knows that I have no s^l
racter in Suffolk.
Judge Reynoldi. We shall not neec
Kinnersley, to go to Suffolk for youi
racter.*
Judge Reynolds. Gentlemen of the
William Hales, late of London, goldsrail
Thomas Kinnersley, clerk, atami indict
forging a note under the hand of Mr. £
Edwards, for 1,650/. payable within
months to Thomas Kinnersley, or ordei
the date thereof, for value received : At
other part of the indictment charge th
with publishing the same. To this indn
they have pletuied NotGnilty: The qi
you are now to determine. Gentleiiie
foundation of this which bath been insii
by the counsel on the aide of the prose
is, tliat these gentlemen, or rather the
them, Mr. Hales, having an acquaintanc
Mr. Edwards, and being indulged by hi
liberty of applying to him for franks, the
made a wrong use of this, and by con«
* In Trinity term 5 Geo. there was
fonnation against this Mr. Kinnersley a
Moore, as being evil-disposed persons, ii
to extort money from my lord Sunder laj
conspire together to charge my lord w:
deavouringto commit sodomy with th
Moore; and that in execution of tbi
spiracy, they did, in the presence and h
of several persons, falsely and malicioui
cuse my lord, that he '* conatus fnit r\
neream habere*' with the defendant Moa
so to commit sodomy. Kinnersley oi
peared, aud pleads to iasue, and is found |
and several exceptions were taken in ai
iudgment, see Strangers Reports, vol. 1,
but the Court over- ruled them all. Whe
judgment was given for the king, and
wards the Court proceeded to sentenc
told the defendant Kinnersley, nothing !
being a clergyman protected him from
poral punishment ; they fined him 50*
year's imprisonment, and to God surei
his good behaviour for seven years. In
term, 5 Geo. Moore Wax convicted an
tenced to stand in the pillory, suffer a
imprisonment, and to nnd sureties lor
years. And this term, Kinnersley, o
davits of his being indisposed, moved the
that lie might be admitted to the bene6t
rules. Sed per Curiam, we never do it tor
execution, which diflSera from the case of
SOD oommittad for hisb treason, who bav
bailed 00 account of iUoess. lb. I96.1bni
' a M'ademtanor.
« if ttiE \eatn tf ih» word ■ fTree' ioin
•In tlx^." uiil hy trtiliog aome flilier worJs,
tejr k>Tc DOW iDrmril il mlo a nrgociable note
fir lb* ntm «f l.USU/. jiiynble williiti six
■Mih* M Mr. KliuierKle;, or hin order; And
Aw Mr. KiBDcntkf , tn ^rs a circiiUtion tti
feaaic, and make il ntfgociable, baih, la cam '
tMBWB wtib Mr. U>Ifb, iDdaneil bis nsme-
M*. Uaar^* \» mpontitile lo any body lo
«tMi 4W wote » trinKferrtil oTtr. Genlle-
■■.IKMakraul ihlstoWtliecBSe, they tiave
fttiMbsrouml In «liew ihal Mr. Hale*, fat
mmi liBF, on Mfml preteoces, prorared a
■ahir *f aaptrscTiptiftiiB to be writleo for
taht l>r !llr. Edwania, who is a niember of
fHfaMst, and particularly (ome auppnciip-
tfiMiniMcli circuroslaucea as were moat ac-
■^iMadaWd lo aer*e a dmign of ihia oature.
iii M tU* end they h»i>e produced Thomas
■iMr, ■ Mrrtaul of Mr. Edwards's. He
■ilh, Ihu Ur. lUIes, lirina near Mr. Ed-
■«4a in Dulcc-sireei, in WeKtminater, haili
mtntA than applied lo him for frank Fo?er8 to
«ari MWK into the cuuntry: thai Mr. Ed-
««<i« kaitt PITCH iiim seTeial for thai purpose,
htf ft n Si ally wrote the whole sujiertcriptioii
Vi^BiC iHirmaiit tu the directions that were
piM him: that In July Um there came a
■MMlsf fVaak*. SIX of them, wlimruftive have
M fnduced, lo be franbed, but without any
Acoan In irboBi to vuperacribe them. Mr.
IIbbi4« *«i dein«d lo frank tbem wilhont
mn MtpKncrijitiori : Mr. Edwards refuseil lo
nifc iMoi. Hiiinis directed to wbum lo aupn-
■ntellMm: Thu« Iheaecoters, upon thai,
WMaal dooeal ibal lime. But ihea lo shew
Ml «lwl pMt aflerwards llpnn occnslnu of
iHhbitks >cul la he frinked, Anoe Clarke,
a Mrtanl alau lu Mr. Edwards was callad.
ikMh, Ihal sometime aAerlbii, Mr. Hales's
^iMH cam* a^in ov«r lu Mr. Edwards's
blow, and told her that Mr. EdiranU having
i<— d to frank his master'^ cuiers williout
Wfamptiona, \\* had bronghl from his master
■ faftrwf ihtectiuns what aupvncriplions he
4Mr«d Mr. Bilwards to ]iut lo tbem. Tlial
■tpst a( dirrctions hath been produced, and
Llh hern ■*>«!■ hy Mr. tloolh to be Mr.
tLt^mma lnDd-wriiiii|r. Tbey trcre very
Ann dvidfOna .
T«o In Mr. Lt'Tell, of HuDtiaston.
TwawJohu I'mli, eMi.At Bristol.
T»a Iwiftffeti Mitford, owj, I^eler,
iad Ibey miubl inlvr, lltit as ihese superscrin-
tma wrra icry abort, and W won' ) not tsRC
^■ucli rfMim, a Tactnl upace would liavcheen
Maad-JEDI tn trritc any tiling of this nniure,
1\M ■■ ri>« maun of Ibeir pradneJne an accounl
'*'* ~ icrioii, which dolh nut immtidiately
uae.bntnnlv at they areinclinahfe
tt (ome such IVank may hsTebcm
Wfc «*e at lo anrh «n end as tbrsr seem lo
iMahnrndengnnl for. And thi-n,loBhewynu
fciaa which tlivy m^de herrof, tbc note [i
"Iprflmiaelu pay in Mr. Thomas Kiiuers.
ley, or his order, withio six monihg at\er data,
ibe sum of siiteeo hundred and fifty pounda
lor ibe tbIub recalled,
" Marck'-iO, 17S8. Sahdel EDWaaw."
and on Ibe bark il is indot«ed with the oanie,
Thomas Kinnersley. Gentlemen, they have
insisted upon it ihal Ihe neie itsvlf carries the
evident marks of forgery upon il. They say
ihnt this it so plainly derived from Ibe I'lanK
cover of a letter, thai Ibe word ' (Tree' Is not
wholly covered, but thul still some of il ap-
pean ; thai llie stile is oniisDEd ' for llie ralue
received.' ' The' in a lar^je hand, and then af-
terwards ■ value received,' the u of a round
hand, wliereas all Ihe other ee me of a ijuile
diHerent figure, in a secretary band. Olher
obsertaliont they have also made, which you,
thsi have rieweo the note, can easily jud^e of.
for that purpnie they have produced Mr. Charl-
ton Tbrup. He sailli, that on May 92d ta>tthit
defendant, Mr. Hates, brciii{;hl this note to him,
deiirio^ bim to tend him three boul. notes npoit
il; thai he, not caring; tn have bis credit en-
gaged lo lucb a decree, refused to do il; bnt
upon bis imporlUDity, did at last consent to
give bim a promissory note of 400/. upon ihe
security of Ibis note, whieh Mr. Hales there-
upon then de|>osiled in bit hands ; thnt il waa
a note for 1,850/. aipied by Mi. Edxards,
payable to Kinnersley, and indorsed. Ha
Bsith, indt'ed, that be did not Iticn observe the
indortemeaL Seeing this noie signed with
Mr. Edwards's hand, and knowing him to be a
mtn of ffr«ai sufficiency, he was not to atien-
live lo tlte other. He sailh, that be kept lliia
note in his band till alter that Mr. Hales waa
taken up, aitd then he delivered it hy Iha dire«>
lion of Mr. Edwards loMr. Boolh; ihalbefora
It vent out of bis hands, he observed the in-
dorsement. Hesweui'salgo, thalil received no
alteration in the mtermedl ale space between ita
coming into his hands and its going out : it
most be therefore iudorsed before. He sailb,
that at to his own note, he knnweth not what is
cume of it, but believes I but il is in the hands of
Mr. Maddoi, at the Bank. To shew that this
is a forircd nole they bafe called Mr. Spicer,
who halh been above twenty years conoerned
for Mr. Edwards ; ahout ten ur twelve as his
clerk. He sailb Ihat the name it Mr. Ed-
wards's, and that the ff is also liis ; that il ia
bis roaster's conttani custom, when be franha
a letter, to write Ibe word ' fTree.'and ual * frank'
over his name, in ihe manner wherein ihis
orig:inally stood, and tbul always with a ff. He
aaitb, Ihat he likewise thinks that the r is hit
master'* hand-writing, hut that the o is since
crowdeil in bclween Ihose lettert. He thinks
that there are plain footstrtis, which ahew Ihat
the first of ibe Iwo ce wiilch joined lo form
the woid' ITree,' hath been made use of lofi>rui
the hrvt ^rl of the heuit of lliey, and the other
stroke bein^dratrD between tlAf and the other
983]
S GEORGE II. Trial of Wm. Hales and T* KinnerHey^ [281
tf j it forms the word^'^ but then it doth not stand
at usual ofer the y. And then be observes,
that he the rather believes this to be his mas-
ter's f, for that he always writes such an baud,
and all the rest here are in quite another hand.
And he saith, that he believes, that beioff ac-
quainted with his master's aflfairs, he should
have known of it, if that there had been any
such transaction of his master's, and that this
note too is of a quite different form from any
that his master ever delivered, and in a manner
therein his master doth not usually transact
his affairs : for that, as he is a man of fi^reat
credit, he never knew him give a note for time ;
and in the next place he is so very cautious that
he never knew him give a note but that he wrote
the whole body of it with his own hand, whereas
the body of this note is not his own hand, and
therefore contrary to the method that he usually
observes. Thus far the evidence is product,
in order to charge Mr. Hales, one of the de-
fendants : but tlien in order to prove Mr. Kin-
nersley a partner in this transaction, they have
afterwards observed upon the indorsement that
this note beinnjr made payable to Mr. Kinuersle}',
it could be of no use tilliudorsed by him to ^ive
it a curreiicv. They have shewed the hand
upon the hack, and in order to prove his name
wrote there to be his hand, as in cases of this
nature noihin<^ but an observation of the simili-
tude of hands can be expected, they have called
on those that have seen his hand, to give their
o|)inion thereof. The first man expresseth
himself with a great deal of caution, seeming to
apprehend ut hrst that he was called to swear
{)ositIvely that it was his liand : he saith, that
le hath seen him write several times, particu-
larly at least three or four times the last year ;
that tills is so like that he verily Mieves this to
be hi;! hand, and cannot alter Lis judgment as
ixi it. To the same purpose they have also
produced another person, one Mr. John Lin-
coln: he saith, that he hath seen him urite
several times, and put his name to receipts in a
book : and that he cannot believe but that this
is his hand- writing. Some of you having de-
sired to see and compare with this note the other
note which was formerly proved, it hath been
again proved ; and as the person aforemention-
ed jiroduced several receipts which he saw him
write, you have had them also to look upon :
which how far it will help you in forming a
judgment you are to judge. Further, they
say, that Mr. Kinnersley was a stranger to, and
had no transactions with Mr. Edwards. They
have called several persons that were present at
the examination of Mr. Kinnersley before sir
Richard Hopkins, as well as sir Richard hini-
lelf, who all say that Mr. Kinnersley himself
owned this, and wasgoin^ to say something
further, bad he not l)een mterrupted by Mr.
Mitford. 8ir Richard Hopkins hath been pro-
duced. He saith, that in the latter end of Sep-
tember last, Mr. Kinnersley was brought before
him, charge<i with two notes, tiz. one of 1,260/.
and this note of 1,650/. ; that they entered into
the eTtminatioQ of the fint notei which he
I owned very frankly to be his note, written with
his own hand ; that they then entered upoo the
other note, which he verily believes to be tb#
same that bath been here produced ; that BIr.
Kinnersley having denied this indoraemeDt to
be his hand, he desired him to recollect whether
this indorsement was not his hand too, for that
he observed a very great likeness of the hand
between that and the note which he had owned
to be his hand- writing, and delivered the note ID
the defendant Kinnersley to look u|Km ; that
upon this Mr. Mitford came up to him, and
said, ' Answer nothing : this is not your band-
writing.' He saith, that upon thii Mr.
Kinnersley said the same thing, that this ww
not his hand- writing. He saith, tiiat be asM
him, w hether he had had any dealings with
Mr. Edwards P That he replied that he had not,
and that till this time he was an utter stranfff
to his person. He saith, that Mr. Mitford and
he baa some high words upon this occasn^
he reproving him for interposing when he ap»
prehended that a further discovery might have
been made. They next endeavour to shevi
that there was a correspondence carried on in
a private manner between the two defendaniL
In order to shew this, they have pitKlueed
several persons at whose housesihey have mrt:
one of them is Thomas Bab ; he saith that he
keeps Peel's coffee • house, in Fle«*t-street ; thai
the latter end of Inst summer Mr. Ualee very
frequently came thither, and would sometimes
be there for an hour or two ; that he oAsn
asked whether the minister l\ad been thereto
ask for him, not asking fur Mr. Kinnersley by
name, they knowing whom he meant, haviDg
often seen them there together ; that when Mr.
Kinnersley came in, they useil to retire into a
private room, and stay there together for some
time; that one time Mr. Hales observed Mr.
Kinnersley t^oing down Fleet-street, went out
and went after him ; that sometimes they went
away together, sometimes asunder ; some-
times one went out at the one door into Fleet-
street, and the other at the other into the |>as*
sage to Fetter- lane. He saith, that this their
resort to his house was till about a mouth be-
fore that Mr. Hales was taken up, and was
then discontinued. Mr. Kinnersley asking
him, whether ihey ever called for pen, ink and
paper .^ To this he rejdiei, No. Of the same
nature is the evidence oC Thomas Brooks ; be
saith, that he keeps a coffee-house at Downingn
street, in Westminster; that Mr. Kinnersley
used to come to his house, send for a porter,
and give him a note to Mr. Hales, who there-
upon hath come thither to him, and they have
gone together by themselves to the t'urtlier end
of the room ; that this they did several times,
and stayed together sometimes several houn.
He saith, that once particularly they staid
there till it was so dark that he usked his ser-
vant why he had not carrieil the gentlemen •
candle; who said that he had carried them one,
but they refused it. Gentlemen, they havn
then again had resort to the examinatk>n before
sir Richard Hopkins: Ihey have, as tothii^.
W]
Jit a Misdemeanor.
A. D. 1729.
[286
caned Mr. Wrigflit. He saith, that he was
pfcacnt mt that eiamination; and that Mr.
KkuMralcy, beiajg^ pressed to answer several
^acstioiis pat to him, was in some emotion, and
■■ii, I will tell you all, give me leave ; seeming^
Mms to take time to digest his thoughts :
ihiitlicnoiie Mr. Blitfbrd came up to him, and
Mttan bold his tongue, or he would do him-
ariff SMe miachief, or words to that effect.
Bt Mag examined as to some particulars
te Mr. Kinneraley affirmed to have passed
fttfamitr Richard Hopkins and Mr. Mitford,
■tflkalnr Richard advised him to take his
fiind^ advice, he denietb this, as doth also sir
lakwd Hepkins himself, to whom Mr. Kin-
BCfriej hereupon appealed. He saith, that he
tUakstkat thn interruption waa afVer that hav-
iagowMd the other note to be his hand -writing,
ka kad deaie<l this indorsement to be his,
air Richard thought it before, and de-
to pvevent his answering him on that
Tmt have also pNroduced Mr. March,
liiBr I&chard Hopkins's clerk: he gives
M oineb the same account. He saith, that
Mr. KiBMrslejf having owned the other note,
~ ~ ~ ~ this indorsement to be his hand, sir
serving the likeness of the hand, ad-
to recollect himself, and consider
vkctber that indorsement was not liTs
I ISO as well as the other note, for that the
bwete very like; that Mr. Mitford upon
■Herpoacd, and said, * 1 would have you
and not answer that question.' He
MB that air Richard advised Mr. Kinnersley
makehia friend'a advice ; but on the contrary
■ilh, that sir Richard was a little warm and
hfiikiufleil him for his iuterposiiiGf, as being
as iaferrupliun of justice. Tlii*} is the evidence
Ifcstteth been laid before you as to this note,
kaft lo prove the forgery uV this note, and to
Aew Ike nse that was made of it both by Mr.
Hales and Mr. Kinnersley, who is charged
with the indorsing this note in order to make it
carreai. They are called upon to make their
(Itfeoce: Mr. Hales stands mute, and saith
BOCLiDg. The facts bear>ery hard upon him,
kt being supposed to procure these franks : it
Uioicd him therefore to give some account
kav be came by this note. So as to that I ap-
prehend that there is no litfficulty, Mr. Hales
BiUag no defence. Bui the question is. How
fu Mr. Kinneraley is proved to be concerned ?
liis counsel have endeavoured to sol\en the
fvirfenee, or make it not applicable to Mr. Kin-
Doiley. They own that there was a fami-
liarity between him and 3Ir. Hales: but then
tktjr'aiy , that there was also a familiarity be-
tween Mr. Hales and Mr. Edwards : they say
teefore, that familiarity with Mr. Hales is not
anrimina] tbinzf. In itself it is not: but the
fSHAioa ia, whether a criiiiinal use hath Item
■ide of it ? They suppose it to be a forged iu-
IVBement; but say, that the same person that
fcvgfd the DOtemight alsoforge the indorsement :
■ad tbey aay, that suppokiog it to be Mr. Kin-
Mslaj^ hand- writing, it may be well supposed
^^"^^ "impowd upon. And they would
also have it believed, that this is an usual thing
for one person to indorse another's notes among
common acquaintance. But how were they
common acquaintance, when Mr. Kinnersley
hath acknowledgeil that he had never seen Mr.
Edwards in his life till afler tbisf They say^
that it may be the easier supposed that Mr.
Kinnersley did thus give credit to this as a true
note, and not take it to be a forgery, since Mr.
Thrup, who is a man in business, was imposed
u|M)n by it, and lent 400/. upon it. Tbey have
called al^o aome evidence, not directly to con*
trovert the fact, but to contradict some thii^
given in evidence, relating to the examination
taken before sir Richard Hopkins. To tliia
purpose they have called Mr. John-Hayes. He
saith, that whether this indoraemeiit was bia
writing was not the question proposed to Mr.
Kinnersley, when Mr. Mitford interposed, he
having before denied that ; but that there waa
another question, that waa then proposed to
him to answer ; whether and how often he had
been to visit Mr. Hales in Newgate P And he
saith, that as to that it was that Mr. Mitford
interposed, and advised him not to anawer to
that question. They have called also Mr.
Ward, who was present at the same time, and
gives you much the same account. He ap-
prehends that there was a dispute about the
minutes that were taken of what had passed,
and that Mr. Kinnersley was in a passion, and
desired to be examined in the court of aiders
meu ; and that then Mr. Mitford interposed,
and advised him not to desire this \ that the in-
terruption was upon that extravagant offer of
his, and that upon that possibly sir Richard
might advise hira to take his Irieud's advice,
that is, to be clear and not so rash in answer-
ing the Questions put to him. Mr. Kinnersley
himself hath laid Wore you what he thought
proper. The witnesses that were called (you
have doubtless observed) as to that examma-
tion, both of them say, that he had denied it
before the interposure. Mr. Kinnersley speaks
himself and seems to say, that he doth not
know but that it may be his hand, though how
it came to be obtained he cannot well tell. In-
deed it is an extraordinary thing how his name
should be obtained on the back of a note signed
by Mr. Edwards. Gentlemen, if any other
particulars, material for their defence, have
slipped me, you have heard them, and they
oii'jrht to have their weight. The question is,
Whether and how far he is a party in this
transactiou ? If he be a party, thoujjh he doth
but the one part, he is cquall v gudty : every
man that takes part of these things is equally
guilty of the whole, and stands undefended.*
The note then must be taken for a forged note,
and probably in the manner that they have
shewn. The thing in question is. How far
Mr. Kinnersley is concernc<l ? The name Kin-
nersley, you see, is upon it : if his name bail
not been upon it, the note had been of no avail ;
for there bavin;; been no transactions between
* Sou East^s PI, of the Cr. c. 19, § 59.
SS7J
3 GEORGE II.
Trial of WiUiamHaUSf
[888
them, lie could not have deminiled the monej.
Bat the maia bitsinem was to indorse it, that
other peraonf that knew not but there vaig\xX
have been such transactions between them,
might credit it, and lend money uiion it. Whe-
ther the proof that is given you that tliis is his
hand, couoUmI with his own apprehension that
it is very like his hand, will satisfy you of it,
2 on must judge. If ^ou judge that it is his
and, the next Question before you will be,
bow far it couM oe put to a note of Mr. Ed-
wards's? It is plain that there could be no
foundation for it : if then you think it satis*
fhctorily proved that bis hand was put on the
bac^ ot this paper by hira, knowing it to be a
note of such value, and there be no reason
given you for it, you must look on him as a
party ; but if you suppose it put to the back of
Ibe note without his privity, in that view of the
thing yoa must acquit him.
Jury called over.
Clerk. Are yon all agreed in your verdict F
Jury. Agreed.
Ckrk, Who shall speak for yoB ?
Jury, Our foreman.
Clerk, How say you? Is William Hales
Guilty of the misdemeanor wherewith he stanils
charged, in forging a note for 1,650/. tod in-
iloruug the same, and in publishing the same
as a true note and indorsement, knowing it to
ba so forged and counterfeited, or Not Guilty P
Foreman. Guilty.
Clerk. How say you, Is Tliomai Kinners-
ley, &c.
Fweman. Guilty.
Mr. Strange, My lord, we desire that Mr.
Kinnersley may be now committed.
Judge "Rtynoldi, Whence was he brougfal
hither P
Mr. Strange. From the Compter.
Judge Reynolds. Well, now that be ii co»
victed, he must l»e committed.
Kinnenley. Whither, my lord?
Judge R^^lds. To Newgate.
Kinnersley, But, my lord, there arc tm
writs against me which fix me to the Gomplv.
Judge Reynolds. They will follow yea
doubtless to Newgate.
Kinnersley. But, my lord, the order of Iba
lord ehiefjustice was, that I shoukl he oaa*
mitted to the Compter till discharged.
Judge Reynolds, Your being ordered Id
Newgate, is a discbarge from the Compter.
Kinnersley. I bless God that I go back ui-
nocent of the charge against me.
Judge Reynolds. Jf yon do in your om
apprehension, it is not so in the appeebenain
of the jury.
Kinnersley. My lord, I thought I bai
cleared that matter. If Mr. Hales bad broogbl
me that note to sign, I believe that I ahnlA
have signed it: hut I should not have done il^
if 1 had known that Mr. Edwards's nuDe wn
fraudulently obtained to it. May I oever sea
the faoe of Almighty God, if 1 was ever privTlt
any of Mr.Hales'sfoigerieB! IfyoarlMdnip
please to direct me to Newgate, I derirnll
may be immediately, for I am ill, bavug baa
here so long.
Judge Reynolds. It will be preaentlj, fti
the Court is going to aiyocirn.
477. The Trial of Wilmam Hales,* for frauduleatly forging and
counterfeiting a Writing, purporting to be a Promissory Note
of Samuel Echrards, esq. to Samuel Lee, for Four Thousand
Seven Hundred Pounds: 3 Glorgg: II. a. d. 1729.
The Jury called over aud sworn.
Clerk. 0Y£Z, Oyez. If ^y one can
inform, dec.
Imdictmbnt.
Gentlemenof the Jury, William Hales stands
indicted by the name ol William Hales, of Lon-
don, late goldsmith ; for that on the 1st day of
August, m the 8d year of bis majesty's reign,
be did fraudulently forge and counterfeit a
writing, purportinfjp to be a promissory note, in
these woiils followmg,
« March 30, 1788.
" Six months after date, 1 promise to pay to
Samuel Lee, or hb order, the sum of four thou-
aaod seten hundred pounds, for y« value re-
eeifed, Samubl Edwards."
* See Ibe prwedug CaaasL
and that he did knowingly and wittingly pobUab
the same as a true note, knowing the same to
be so forged and counterfeited.
9/lr. Strange. May it please your kwdabip,
and you gentlemen of the jury, this is an in-
dictment ag^nst Nr. William Hales, for forg-
ing a note in the name of Samuel Edwam,
esq. and publishing the same. It sets forth,
that on the iRt of August, in the 2d year of bin
majesty's reign, he forged a note in these H'Onta
following, &c.
And it further sets forth, that the defenihmt
Kublished the said forged note as a true note of
ir. Edwards's, knowiug the same to be forged
and couutcrfHted.
Sen. Whitaker. May it please your lord-
ship, 1 am counsel' in this cause for the king.
Gentlemen, this matter is of the same naturo
with some former indictments : I shall there-
fiwe take up but little of yoor line. It
8S9] Jor a Misdemeanor. A. D. 1729. [S90
pnrt, gratlanen, to ns, that this is the effect should rome upon yon for the affirminc^ of thii
nf ftinie firmnk ooTers, that Mr. Hales hath jiid<rineiit. Upon this sir Diby Lake was io-
frudalditly obtained of Mr. Edwards. 1 need diiced to be his sccurir v ; thus he came to haVe
Ml DOW acquaint you, that Mr. Edwards did this note delivered to him. Gentlemen, when
ht some time induliire Mr. Hales with frank we shew you, as we must, it bciii^ afresh case,
coTcn, which Mr. Ilalea pretended that they how he bad fVanks from Mr. Edwards, theme-
vere lioi^ed for aenilinf|r news into the coun- thofl wherein he hath made this use thereof,
trf . This note, jg^ntlemen, is even a i^rosser and itien that this note was thus delivered to
fn^i than the utlicrs can be Rup|K)sed to be. sir fiihy Lake ; and you have considered the
Bmeasam of 4,700/. which Mr. Edwards is several circumstances of the case, it will appear
soffHcd tu promise to pay within six months both that this is a for^^ed note, and hy whom it
ifllefdile to Samuel Lee. This Lee we have %vas for;Ted ; that Mr. Hales was the person on
into the chanictcr of. He is one that whr>m it must be charfrcd.
l0
Ihii ^ ^ ^
for 4,700/. Gentlemen, when' you come in betwet^n that and liie r; and that there not
to kiok upon this note, you will see on it the beini;' sufficient room, therefore the word
pUnestmarka of fbri^y that can be. When ' pound' is crowded in, in n narrow manner,
ytu ooroe to look upon it, you will plainly see cuid then fullows the j/i so that it is not possible to
thai ■ ffree Samuel Edwards' still remains s!>ppn::p th it i Cany 7;entlemnn had wrote it be-
fiyhlc There is the double / which Air. fore the // u ns wrote, he v. ould have crowded
Edwards jfenerally useth, which we shall tiic word < pound' into no narrow a room. Bat
yrsfe br witness. And then between the j^*and there was tliou a necessity for it.
Ihtrtbereisano struck in, which you will T/iomai Maddox, Anne Clarke, and Mr.
IS not the same wntmrr witli ihe^ Booth, were called, sworn, and deposed as be-
le with* Samuel Edwards.' i\nd then fore ; and the note ol direcliona was again read,
out the v« you will see the two ce are m*^ o • ^, ^„«,„
i..»«.toiiimkeavwithastrokeatthcbottom « «/ - ni ' * ^^^t «.. iw «n*.
^«i^ - u-* *u-* -.*'ii *!.*-. • -Li Mr. Slranee. Please to look on that note,
? ^rS^ L! h ■•?"* P'^'y """ *'<"« Mr. Kdwar.ls'8 ?
F ^SSS^. !^1T.l"itiT iT.if^" Spiccr. The name i. bis, the ^and the r i.
i J?!"i*^ ''*J"'v ''" M?"* "'^""'^' also hi"- The o seems no to Kc of the same
Inn * value received. You will see a con- • i i • zv ■ j j • rm
j.^u i_^ii -.«/*! «••* I.* I \ mk, and la afterwards crowded m. The via
depth beneath, and that it must be cut uq* i,:g
•ffft» »on>ethiDg ei«>. How it was, it «.»- „, g^ y^,^^^^ -^ M, Edwards's way
CBis Mr. Hales to shew. As to the method off|.a»j,- ^a
vbcniDthis came to be discovered, it issuHi- o • W?^^^ a . i T?.i.»<a»i. » c Vm^^ u^
^:^^^» II -. .u « «i • I 1 1 - • 1 iSp:cfr, * Free Samuel Luwarus. * rrec he
Ci6Btt«tell vou, that this had been occasioned ..«./ii., ... •»_ -.i a-
I .. J- • c * r I ■ *i usurilly writes With a //.
t|r lae discovery of a note forafcd ui the name itT- c/ rh- 1*^ . «««- !,««.« u:«* :-
Jr If- r«u- - - I ■ - I '. -Mr. Stranfre: Did vou ever know nim m
•f Jir, uibsM>n, an apprehension and commit- r ^ i - i I'li 1 1 r i vj
_^. ^^ •, -I* , '^'i ^ ,, . t' frankiiirif, make use oi the word HrankV
■eotof Mr. Hales; that this jjavc occasion o -^ •^ ^i--
for several persons to enquire into the vpfiditv \tl ^c# ' **' ' ' ii« - i ^ i « «^.. k*.«» •«
^.i ' I • I. .1 I I I i- - ^If- Strange. How lonff have you been ac-
ihoje notes which they hid received irom n„„;n,,.i „:,f h;^ v * ^
Nr. Hales. As
!!I!!1 ^^^^ !!V* !r". T'^^rT T''' "*'''T ^'^- SUa^wx, mx vou ever know him any
T^Z, ^»\ '^^l^^** »^.c^'"« *" ^" discovered, „.,,.^^ ,,,nn...,w..i ..:... s ,.«.,nl 1^^ ? '
thit \Ir. Hales had
lbi» promissory
SubqpI Edwards
BMMllhs after date uf i^aumiri Ajt'i:, lur ^^HJUi. Vi t«, t-* ^ jI : i. j.!..* U-.;^-. *«
1. .1. ^ -^ *u * •* ^1 1 Mr. Slianiic. Uo vou think, that beinff ac-
h.»ed OMrniHyJUke: Mr Hales had been J, ,,,, ,,^,,^ ,. -f ,,,„^ , j ^ ' J
i» k*e!i on the evil ilay as loncf a» possible, it c x- w 1 1 r «• « r ..k<«..m
.„ • . » "^ - 1 » *• I S..:rcr. i cs. Sir. i bolM*vo tiiat I snoulu.
wu necessary to procure some substantial per- ,■ ... tvi «* r -4i <.«o»n<. i..»«
.^ . I I- -ir I-— :- ivi T I ' '*«r. i^trntice. What lurther reasons nave
mui be bail for him ; sir Biby Lake was np- ^ . • ,• ^.i- ..^i ■ ..,„i
^i;.. . . - i_. J.- "i .1 'i* you to believe this not tone his note;
pM to, bemsf a very subslaiflial f'entleinnn. It -^ c ■ i . „ i i- #i • *.. k<«i.:. •.rm««
L_- tv^-. r o _^ - ir t1 -i ii S-yurr. I can never hfMievr this t'> be liis note,
W^on.Wraof firwr an.Uoracon«.lcra^^^ for 'he never j;ir,^ a..v promissory ..-.ts for
•i, that be was dwire.1 to be bail for Mr. ^. „„^ „ •'„,„^ ^^ ^„ ' „i„,„,„ '„^i^ ^,^^
tulffi, he made a scruple, and rriused it at • i' . a i ■ „. « i «.. i
K.^ — I —La • I. ii* « •* ■»! II I whole note with his oivn liantl.
WM: at length to induce hirn to it, wlr. Hales
•id to him. Sir, you bhall be at no raaniier of ^'^ ^^'h '-«'"<^ s-.v irn.
HA; I have a pronii^sory note for 4,700/. Srrj. Whiftilicr, Sir, pray j-Ict-:^ to jjive ui
•hicb is made by Mr. E'hvjircls, who 'n a sub- an arrount,.whpM you ^^-..w il»it ivi.r Tr ;«., !:;")i
Mftatial man, payable nithin a'lx months:: this wliat fM*cas>on ii wa^ It > y^' '. l'» y)'A, uu-i l>y
Will be an ample lecurit^', if an execution ^thoin it \tas dcUvLTcdtoymi ?
Vt>L. XA II. U
•91] S-GEORGB IL
, Sir Biby I^ke, About tiuatimtWeWemonih
llr, Williim Hi}f» sent Mr. Kiaaenle; to me
al mv huuie iu Croiby-aifuaK, wbo UtU me
ibat Mr. Hilei wu arreued upno ■cconnt uf
abuaJgi^en bv him, anJ Blr. Kobert Hiles,
to Dr. ftlnpletoii at CaoluHiury ; tbat the
Doctor hBTiog arreateJ Mr. William Halei, be
ilMired Ibat I woutil be bail tor bin). I deaired
Hr. KiriDeriley to roeei uie Id iheereniDg:
we tiien weot to the judge* cbamben, and
give bail to the action. I tbought, that there
feiug no difficuiiT in the gentleinaD'a appear-
ance, there would be no damage in doing that
ibr a (rinid. Afterwards Mr. Halea camehim-
■eiftome, and desired me that I would be
bail again far him. I lolJ bim that it waa
Mmewliat eztraorditian' ; hot that however I
would meet him at Mr. Tumer'aBt Staples-iiia,
b> CDiiaider what to do. He came to me there
aboat four or fire, and brought a gentleman
with him, who be told me waa bit attorney.
Atfint, he told me not: but afterwards, we
imdeniaod that it was to ■ Writ of Error Ibat
I wai deaired to be put iti bail. I waa then
tirid by Mr. Turner, that if I waa bail to tliat, I
muM pay the money if they did not. Upon
thb I totd Mr. Halet tliat 1 cared not to be hail
In tuch a matter ai this, unless he would give
me Kund aecurrly. He told me that he waa
^iw to Peet'i coffee- honee, desired that I
would consider of it, and come to him again. I
alaid to consult Mr. Ttrmer, and toM him that J
wovid not be bail except Mr. Halef would giTe
«M good security. I theo went to Pecl'i
coffeehouse, and there found Hr, Hales and
Mr. Kinnersley together. 1 took Mr. Hales
to another part of the room, and told him, that
I wonld not enJanger myself and my family
W far as tn engage for such a sum, it being
abuul 1,500^. unless be would give me good
■ecurity. Upon this he put His hand in his
po«^ket, took out his pocket booh, and took out
of it tbii note. He looked upon i1, and said,
Ibat it was a promissory note Ibr four thousand
and <jdd pounds, .ini) vras |inyable within two
or three months afler. Hn put it into my
iMod : 1 looked upon it, and thought it was
»ery good secnrily to me for siiph a sum. Hf
desired that I would kevp it iu my own hand
till the raooey that 1 whs security for was paid ;
but said, that he would jmy tho money tontf
IbefcrelcouM hecalled upon-. 1 thought I had
■officient satisfaction, and went thereupon be-
ftee Ibe Isnl chief-iuttice lluymond, and gave
fcul to the Writ of Error.
Nei). WkUaktr. Sir, I would desire vou to
look oo the notr, and on the twck of ft, and
tell us whether it bath had any alteration f
Sir Biby Lake. None, Hir, tliat I know of.
Bnt I must give yon s particular account of
•tie thing. It was nut ail the lime in thesanio
cusliHly. Before 1 came there, my servant
went and wailed for me witli my hone in Hoi-
boni, 1 beinz going out of town. Going tbere-
^re to Air. Turner's, 1 desired bim to lay it by
Ibr no in his dnwcr, where he hath otbo-
fi|Mra of mine. Acoordinglj hedidlajr itop;
Trial of WmamHaUi,
and from that time it waa (In,,
Turner's cuMody, till after the time tj
Halea was taken up. When that ha
Harleof the million bank tent a
thereof. Upon that, when I came in.
to Mr. Harle, and told him Ibat I had
note of Mr. Eilwarda's in my hand ; a
I) hearing that you have a auapiclon I
.hat is in your bands is a bad note.
. reason to denre yon to go to !i
wards, and acquaint bim, that 1 bare
note iu Mr. Turner's custody, who is
Derbyshire. All thati could then do,
denre Mr. Turner's clerk to send to
the ker> that we might take oat the I
shew It. The clerk did so; and afb
time bad the key tent him, took out t
and I desired him to carry it to Mr. E
Jt was the same day that the note beca
Sir. Turner swoni.
Serj. Whilaker. Mr. Turner, pray [
kwk upon that note, and give us an
when you tint saw it ?
Turner. 1 believe it was one day io
Ifinniog of July last, about five or sii
ID the afleraooo.' I cannot be particul
the day, bnt I believe that it was the si
that sir Biby Lake gave bail Iu the
Error. He then brought me the noti
by for him. 1 verily bdieve thia to
same note.
8erj. Whitaker. Hath it had any al
J^rner. No, Sir. He desired me I
for him in a drawer, where I had othe
papen: accordingly I did: I new
town in Au^^uDi. AlUrwards my cli
me word, tliat sir Uiby L^ke desireij
would send up the key of the drawers,
to his notes being taken out. Upon tli:
up the key to my clerk, direclea him i
drawer the noti.> was, desired tliat h
take il out, and carry it to sir Biby Lai
Mr. Jlfure iwom.
yir. Strange. Dujou remember. Sir
reuejied a key from Mr. Turner?
More. Yes, Sir.
Mr. Strange Did you iheimpon I
note in the druwer ?
Jlforr. Yes, Sir; in thedrawer ofth
Blr, Strangt. Did you make any all
in itP
Mart, No, Sir; I took il out, and c
to Mr. Edwards.
Air. StraHgt. Hr. Spirpr, you are aci
nith iMr. Edwards'K nay of dealing.
be mves au ' ■' ' -
whole note f
Sputr. Yes, Sir; [ never knew h
any bnl tluit he wrote the whole note.
Hr. Slienge. Doth he use to givo t
lime? — Spicer, No, Sir, never.
Mr. Strange. Aly brd, we DOW da
Uw note may be read.
S9S] for a Misdemeanor,
Note read. •' March 30, 1738.
■* Sis months after date, 1 promiie to pay lo
SuMd Lee, or bis order, the sum of four
~ ae? en huodrcd miuDds, fibr tlie?alue
Samuel Edwards."
ladoraed, «< Samuel Lee."
Vr. Strange. You will obserre, {jfentletneo,
Aa vai * ffree' is legible atilt, and ubMir? e how
Ihiivd * poQiids' is crowded in.
Blr. Bird sworn.
fci Wkiiaker. Sir, do yoa know Mr. Sa-
■ad Lea T-^Bird. Yes, Sir.
Sari. WkUuker. What is he ?
Bird, A sea faring man.
Bcri. WkUoker. Do you koow his wife ?
Bird. Ytf, Sir.
Sen. Wkilaker, Did she nurse a child for
air. Hales?
Bird. Yn, Sir ; two for se? eral years.
Soj. Wkiieker. Is he a man of worth ?
Bird, No, Sir ; be is not worth 5/. in the
wU.
fai. Rah^. What say vou to this, Mr.
Bihif You see that they fiaveffifen an ac-
> of the method that you took to procure
^ers. This note they say, that you
as a true note, how should it come
that such a |ioor |M*rson as tliis Lee is
Kse OTer such a note to you ?
Bala. Mr. Lee gave it mc, there being
MaicB due to me.
8tij. Kdby. If you can prove any transac-
fm WtwecD yoa and that Lee, to induce the
jvytobelieTe that it was given you upon that
oaaderation, it will he pro|ier now to do it.
Rifci He is gone abroad.
Hej. Raby, Is there any person that can be
witDcss of any such transaction ?
Btia. No, Sir.
Hcr|. Raby. Gentlemen of the jury, William
flalft of London, late proldsntith, 'stands in-
^Ktedfor forging a note for 4JU0/. payable
vithin six months after date to Samuel* Lee,
oropler, in the name of Samuel Kdwonis, esq.
lad for publishing the same as a true note.
Yoa see, gentlemen, that there have been
feneral witnesses produced to shew how he got
pQsnsioo of frank covers, on pretence of
•ending news into the country ; and that he
Mtti a paper of directions for some, which di-
Rctioos were very shorl, ami so convenient fur
iW writing in the intermediate space over the
time, such a note as this. And they have
■«oro that these directions are his hand,
vkicb were sent over by his servant to Mr.
Edwards for franks. Now to shew you that
this note wss published by this man as a true
SMe, and that he is guilty hereof, sir Biby
lake hath appeared. He tells you, that
Acre were two several applications to him
^ W bail for Mr. Hales ; thaf he complied
MIy with the one, but the other he made
*ac icniple of, because it was more dan-
(Kaos ; it beioff to a Writ of Error, and for
ite 1,500(. He was therefore more cautious.
A. D. 17«). [204
and would not do it without security. He tells
you, that upon this, this note was offered and
deposited in his hands by the prisoner. This,
if you are satisfied of it, iixes the note uptm
the prisoner. Jt appears hereby, that it «i*as
in the hands of the prisouer. He cannot shew
you how he came by it : that then is a strong
proof to fix the charge in this indictment upon
nim. Where a forged note is found in a per-
son's possessicm, and it appears that he offcretl
it as a true one, and cannot give an •^count
how he came by it, that fixeth the charge of
forging it upon him. This note was published
in the city of London, and therefore the forgery
in the indictment is fixed there : for it is im-
possible to know certiiinly where a note is
forged, since no one calls evidence to see him
forge a note. Thus it appears to have been in
his custody, and it cannot otherwise be proved.
Other witnesses have been produced, to shevr
that the note hath uot been altered since it was'
delivered by him. Mr. Turner tells you, that
he received' it from sir Bibv Lake the day that
he receive<l it from Mr. llales, and laid * it by
lor him in his drawer; so that from the time
that it was published, it continueth in the same
state that it then vi'as. Other circumstances
have been laid before you, as the manner of
Mr. Edwards's making out any notes. He
doth not give out any promissory note made
for time, nor doth he ever give out any what-
soever but such as are all of his own hand-
writing. Another circumstance that liath been
laid botbre you, relates to the person to \^ hom
this note is made payable. It looks like a con-
trivance to have it ull in his own management,
in the hands of his servant, ami within his own
reach ; that this note should l>e mnde payable
to a poor man, whose wile was nurse to Mr,
llales's children, and the witnfss l»clieves him
not to be worth 6/. in the world. How should
he be entitled to this hill for such a sum, which
he might have indorsed to any other person?
No one sure would trust such a note with such
a person. He could not lie possessed of it iu
his own ri;;ht, and no otlu*r person would en-
trust a man, not worth 5/. with a note of this
value. This circuiiistunce tliey oifer to your
consideration : an<l tlioy take notice of some
letters which shew that there was originally
* ffircp,' wiiich is now turned into *for the,* be-
fore ' value rccfived.' Ii appears that it wa^
* ffrcc Satniicl Edwards:' and it i<) almost legi-
ble notwithstandini; the alteration that iiath
a ■ ■ ■ ■
In en mnde. He Imih suid nothing in his de-
fence to shew how he came hy that note. He
saith that l^e ^nve it him. Is it likely that a
man not worth 51. in the world should (five
out such a note as this 1' 1'lioii;r|i there is
no direct evidence of his for^iiii; it, that makes
no alteiation : if he directed it iu he done, it is
the same thing as if he did it himself; nor
doth it appear that any but liiin«4*lf is concern-
ed therein. He haviiifir |iublished it, is ifuilty
not only of the piib:icaiioii, bui ot' the forging
of it : if you believe it to l)e a forged note, ho
is guilty of the forgery. His publikhing of the
295J S GEORGE 11.
note is a safficient evidence of it. If a maD
had receiFcd such a note, be would readily say,
I received it of such a person on such an occa-
sioD : but there hath been no evidence of this
nature given. If you ask a man, how he came
b^ this or that things, he saith another gave it
iiiin : that may be said in every crimiual case ;
it is often said, but never regarded except
proved. You are tlicn to consider all
these circumstances, and to judge thereupon
whether it is a forged note ; whether it is
likely that Lee should have a note of this
value, and that there should be any reason for
his delivering such a note? There has been
no pretence of any transactions between this
Lee and Mr. Edwards, nor any colour of proof
on what consideration the gentleman should
H'rite such a note payable to such a man, and
give it him. Gentlemen, here is as full and
plain proof as can be expected, if the evidence
swear true ; so I leave it to you.
Clerk. Are you all agreed in your verdict ?
Jurif. Agreed.
Clerk. VYho shall speak for you ?
Jury. Our foreman.
Clerk, How say you, is William Hales
Guilty of the misdemeanour whereof he stands
indicted in forging a uutc in the name o\' Sa-
muel Edwards, esq. f(»r 4,700/. and pullishing
the same, or Not Guiltv ^—Foreman. Guilty.
Serj. ]VJiilaker. Af\' lord, the note being
found to be forged, we desire that sir Biby
Lake may deliver it to Mr. Edwards.
Sir William 'Thompson, That is but common
justice.
Mr. Sf range. My lord, there is another in-
dictment : but we will not trouble your lord-
ship with thut ; thercfurc the jury may be dis-
charged.
Serj. Whitahcr. Bly lord, we think it proper
to take notice, that upon the three indictments
whereof he hath been found guilty on the sta-
tute of king Henry U, for obtaining money by
false tokens, tlu're can l>e no fine in the case :
VfQ must therefore crave corporal punishment.
Sir William Thonij/xon. The question is, uhat
corporal punishmeni l*" To be sure he will be
pilloried.
Serj. Whitaker. The pillory, my lord, is no-
thing. The gentleman hath endeavoured to
t^et many tliousaud pounds of several gentle-
men : now he is only to look through a wooden
casement, and this is to make recompeiice.
AVe humbly hope, that according to the t\oiils
of the act of parliament, some punishment will
be ordered, not only ignominious but cor|N)ial
punishinciil, as the words are very exteM<>ive.
Sir WilUum Thompson. The Court lo be sure
will order icnprisoiiuicnt, as well as the pillory,
and security afterward.
Serj. Whilakcr. Hut should not the punish^
mem left to the discretion of the Court be ex-
tended lo Komctliing further?
Sir WilUum Thompson. 1 am not for extend-
ing it to ti)rtijre. 1 know not any precedent ;
wniilil I beLMn any thing of tlibt nature,
-iog himMlf la limited by our bw.
Trial ff WiUiam Hdet.
[«96
nAa^
Serj. Whitaker. The penalty seems left to
the discretion of this Court.
Sir William Thompson. I would not extend
it. 1 do not know but that the parliament oiay
think of something else afterwards.
Serj. Whitaker. Well, Sur, 1 have laid U be-
fore you, 1 submit it.
The Judgment of the Court :
That William Hales and Thomas Kinnefs-
ley should stand twice in the pillory ; once in
Fleet-street, at the end of Fetter- lane, and once
at the Royal Exchange, in Coruhill.
TIrat Hales should pay a fine of fii\y mtrk%
suffer five years imprisonment, and give seca-
rity for his good behaviour for seven years af-
terwards. And,
That Kinnersley should pay a fine of 2001
(an hundred on each indictment,) suffer two
years imprisonment, and give security for hit
good behaviour for three years longer.
Air. Hales begged that two years of his im-
prisonment might be remitted on account of his
age ; but it was not granted.
February 11 following, Hales and Kinners-
ley stood in the pillory at the Royal Exchaogi
in Cornjiill.
February 15. They both stood again in tbe
pillory at Fetter- lane end, in Fleel-sticat
Kinnersley stood both times in his canoDial
habit, thinking to draw comfiassiou and re-
spect from the popuhice, but it had the OM-
tmry effect.
Feb. 18th following, died in the Press-wd
in Newgate the said William Hales ; and April
7, 1729, died in the same place, of a fcftfi
Thomas Kinnersley, clerk.
" Forgery is now made felony, without be-
nefit of clergy ; as is likewise the publishing
any forged deed, will, bond, note, indorsement,
<Scc. knowing them to be forged, by the stat. 9
and 7 Geo. 2, which see for the several parti-
cular cases there mentioned.*' — Former Edit.
See, also. East's Pleas of the Crown, c. 19«
As to proof by comparison of hands, to which
it appears that recourse was had in some of
these Trials, see in this Collection AlgemoB
Sidney's Case, toI. 9, p. 8t7. See, also, vol.
19, pp. 397, et seq. vol. 16, p. 200.
At the time whf n these frauds were com-
mitted by Hales and Kinnershy. it was usual
for privileged persons to frank letters by mere
indorsement of their names. By stat. 4G. 3,
c. 24, it is required that members of either
house of parliament shall write the whole super-
scription thereof. A history of franking is in-
serted in the Gentleman's 3lagazine, voL d-l^
p. 644.
Some years after these cn<!r< of Hales and
Kinnersley, a curious uttuuipt was made by
one Fournier, a popish priest and fugitive from
France, to dejfraud bishop llondley of 8,900/. by
means of a promissory note furled on a frank.
The bishop published an account of the trans-
action, of wnicb an abridgement is inserted in
the Supplement to the Geutlemaii's MagajeiiM
for the yew 1757« See, also, 2 Vciey, 445.
S971 Proceedings in ilii House of Commons^ tfc. A. D. 1729«
[898
478. Proceedings against John Huc-gins,* esq. Warden of the
Fleet, Thomas Bambridge, esq. Warden of the Fleet,
Richard Corbett, one of the Tipstaffs of the Fleet, and
Wm. Acton, Keeper of the Marshalsea Prison : 3 George II,
A. p. 1729.
i IlPORT FROM THE COMMITTEE OF
THE House of Commons appoint-
ed TO enquire into the State
or the Gaols of this King-
dom, so far as relates to the
CRUEL Usage of the Prisoners ;
which occasioned the following
Trials.
Jovb 90 Die Martii, 1729.
Mr. Ogpktborpe, from the Cominittee ap-
pmei to cnquive into the State of the Gaols of
Hhi kHwdoin, made a Report of some progress
vkMh ibe Committee had made in their enquiry
blilht state of the Fleet prison, with the Re-
■riMH of the Committee thereupon ; and he
mi the Report in his place, and aUerwards de-
botdlhesame in at the table, viz.
The Committee find, That tlie Fleet prison
eient prison, and fonnerly used for the
I of the prisoners committed by the
al-table, then called the Court of tlie
SlvCbamber, which exercised unlimited au-
ifaari()-,and inflicted heavier punishments than
by lar Jaw were warranted.
Aai as that assumed authority was found to
be ao intolerable burden to the subject, and the
ncaoi to introduce an arbitrary power and ^o-
icremeni, all jurisdiction, power, and autlio-
* See New Pari. Hist. vol. 8.
** Aad here cau I forget the geoerous band
Who, touch'd with humau wue, redressive scarcbM
kio the horrors of the gloomy jail ?
l'r.piu«d. and uu heard, where misery moans ;
Where sickness pines ; where thirst nnrl hunger
And poor oiisfortune feels the lash of vice, [burn,
Wtule in the land of liberty, the land
1(~bofe every Mrcet and public meeting i;low
Wuhopen freedom, little tyrants racM ;
j^cutch'd the lean monM^ fiom the star\-ing mouth ;
Tcrt from cold wintry limbs the tatteHd weed,
L«tD robb'd them of the last of comforts, sleip,
Tb« firee-bgm liriton to the dung* un cbainM
'>r, V. Uie lukt of cruelty prevail'd.
At pk-asure mark'd him with inglorious stripes ;
And cni»hM out lives, by secret barbarouk ways,
T^atfor their country would have toil'd, or bled.
0 great design ! if executed well,
Vnh (latient care, and wisdom- tcmper'd zeal.
Te looi of twTcy ! yet resume the search ;
INtg forth the legal monsterx into light,
Vrmdi from their hands oppression's iron rod,
Aad bid the cruel feel the pains they give."
TaQMsoii's Winter.
rity belonging unto, or exercised in tlie tame
court, or by any the judges, officers, or mi-
nisters thereof, were clearly and absolutely dis-
solved, taken away, and determined by an
act made in the 16th year of the reign of king
Charles the 1st.
And thereby the Committee apprehend all
pretences of the wan!en of the Fleet to taka
fees from archbislio|>8, bishops, temporal peers^
baronets, and others of lower degree, or to put
tbem in irons, or exact foes for not doing so,
were determined, and abolished.
That atler the said act took place, the Fleet
prison became a prison for debtors, and for con*
tempts of the Courts of Chancer^*, Exchequer,
and Common Pleas only, and fell under thtt
same regulations as other gaols of this king-
dom.
That by an act of the 92d and 2dd of kinj^r
Charles the 2d, the future government of all pri-
sons was vested in the lords chief justices, the
chief baron, or any two of thi-ro, for the time
being ; and the justices of the peace iu I^oudou,
Middlesex, and 8urry ; and the judges for the
several circuits ; and thejusticcs of the peace,
for the time being, in their several pn clucts :
And {iursuaut thereunto, seveial orders uiid re-
gulations have been made, uhich the present
warden of the Fleet hath not regarded or com-
plied with, but hath exercised an unwurranlablo
and arbitrary power, not only in extorting ex-
orbitant fees, but in oppressing prisoners for
debt, by loading them with irons, worse than
if the Star Chamber vias still subi»isting, and
contrary to the Great Charter, the foundation of
the liberty of the subject, and in defiance and
contempt thereof, as well as of other good lawK
of this kingdom.
it appears by a patent of the third year of
queen Elizubeth, recited in letters patents
healing date the I9lh year of king Charles the
2d, that the Fleet prison was an ancient prison,
called Prisona de le Fleet, alias. The Queen's
Gaol of the Fleet ; and that certain constitu-
tutious were then established by agreement be-
tween Uichard Tyrrel, warden, and the pri-
soners ol'tlie Fleet, and a tabic of fees annexed,
in which the fees to be paid by an archbishop,
duke, uiaiipiis, earl, or other lord spiritual or
temporal, are paiticularly mentionetl, and the
tincascejtained \ihieh they are to nay for the
liberty of the house and irons ; ana that these
constitutiuus and orders were confirmed by the
said letters patent of king Charles the 2d:
Which letters |»ateut grant the oHice of warden
of the Fleet, and of the keeper of the Old Pa-
3 GEORGE II. Proceedings in the House qfCommonSf [SOS
tbe prifloners in the rules delirered iiim, to be
cannot have executed the trust of keepiiur his
prisoners in safe custotly, when he did not kaffm
who or where they were.
The Committee find that the said Thomas
Bambridge, who for some years acted asde*
puty- warden of the Fleet, and is now actnallj
warden of that prison, hath himself been aidisf
and assisting in an escape : that he canted t
private door to be made through the walls of lb
nrison out of the yard where the dogpc are^ tbe
key of which door was kept by hiinself, and hk
with his own hands opened the door and let oat
Boyce, the smuggler, charged at tlie lung*!
suit with upwards of 30,U00/. wbo WM aftar-
wards seen at Islington, and hath beeo fetnd
times let out of the prison by Bambridge.
The Committee find that the said Bambridgt
hath by himself and his agents ofteo refosed
to admit prisoners into the prison, though eon-
mittcd by due course of law : and in order to
extort money from them, hath often, oontmj
to an act of the 92ud and 33d of king GharUi
3, without their free and voluntary cnMsei^
caused them to be carried away fh>m the pri-
son gate unto a public victual hnjr or driokuigi
house, commonly called a spunging-bouae, be-
longing to him the said Bambridge as wardsi|
and rented of him by Corbett his tipstaff, aM
hath there kept them at exorbitant chami,
and forced them to call for more liquor ikan
they were inclined to, and to spend more thaa
they were able to afford, to the defraudiDf si
their creditors, and the distressing of their Ah
milies, whose substance they are compdM
there to consume ; and for the more eflcdnl
making them stretch their poor remains of eie-
dit, and to squeeze out of them the charity ol
their fi-ieiids, each prisoner is better or wom
treated according tu bis expences, some beinj
allowed a handsome room and bed to them'
selves, some stowed in garrets, three in one bed
and some put in irons.
That these houses were further used by tK<
said Bambridge, as a terror for extorting mo<
ney from the prisoners, who on secnrity givei
liuve the liberty of the rules ; of which Mr
Robert Castell was an unhappy instance^ a mai
bom to a competent estate, but being onfortn
nately plunged in debt, was thrown into pri-
son ; he was first sent (according to custom) li
Corhett's, from whence he by presents touBam
briiij^ redeemed himself, and, giving security
obtimed tlie liberty of the rules ; notwithstand
in*j; which, he had frequently presents, as thr
are called, exacted from him by Bambridge, aiM
was menaced, on refusal, to be sent radc I
Corl)€tt's again.
The said Bambridge having thus unlawfallj
exiortetl large sums of money from him in t
very short time, Castell grew weary of beiii|
mnde such a wretched property, and resolvin|
nut to injure farther his family or his creditor
for the sake of so small a liberty, he refused ti
submit to farther exactions ; upon which thi
said Bambridge ordered him to he re-commit
ted to CorbeU'i^ vhcre tbe small-pox tbei
S99J
lace at Westminster, the shops in Westminster-
hall, certain tenements adjoining to the Fleet,
and other rents and profits belonging to the
warden, to sir Jeremy Whichc^t and his heirs
for ever. And the said sir Jeremy rebuilt the
said prison at his oi^n expence, as a considera-
tion tor the grant thereor. But tlie said prison,
and the custody of the prisoners, lieing a free-
hold, and falling by descent or purchase into
the bands of persons incapable of executing the
office of warden, was the occasion of great*
abubes, and frequent complaints to parliament,
till at length the patent was set aside.
And a patent for life was granted to Bald-
win Leighton, esq. in consideration of his
great pains and expences in suing the former
Satentees to a forfeiture, and he soon dying,
ohn Iluggins, esq. by giving 5,060/. to the
late lord Clarendon, tlid, by his interest, obtain
a grant of the said office for his own and his
son's life.
That it appeared to the Committee, That in
the yr:ir 1725, one Mr. Ame, an upholder, was
carried into a stable which btofHl where tbe
strong room on the master's side now is, and
was there confined (being a place of cold re-
straint) till he died, and that he was in good
state of health before he was C4>nfined to that
room.
That the said John Huggins growing in
years, and willing to retire from bnsine&s, anri
nis son not caring to take upon him so trouble-
some an office, he hath for several years been
engaged in continual negociations about the
disposal of tbe said office, and in August last
concluded a final treaty with Thomas Bam-
bridge and Dougal Cuthbert, esqrs. and for
5,000/. to lie paid unto him, obliged himself to
surrender tbe said patent for his and his son's
life, and procure a new patent for the said Bam-
bridge and Cuthbert, which the said Huggins
did accordingly obtain, and Cuthbert paid m
money, or gave good security to pay 2,500/.
for one moiety of the said office of warden ;
and Bambridge gave land and other security,
which tbe said iluggins was then content with,
for S,500/. being for the other moiety of the
said office. '
Tliat Mr. Huggins being examined touchinsf
an instrument signed by him in November
1724, appointing Richard Corbett, one of the
five tipstafis of or belongmg to tbe Fleet prison,
acknowledged that he bad no power by virtue
of any patent from the crown to constitute such
tipstaff, but that when he came to his office
he found that such an officer had been so con-
stituted, and be took that for a precedent to do
the same.
That since the said Thomas Bambridge has
acted as warden, the books belonging tn the of-
fice of the \i arden have been very negligently
kept, and the discharu^es not duly entered, to
the great prejudice of many of fiis majesty's
subjects ;^ and he hath not regularlv taken
charge of the prisoners committed to his care
by his patent ; and hath not, as be himself
coofeaetbi e? er had any aotbentio list of
Caaleil ocquunted liim willi liix
Ml Ib&l (lislenifier, aoit Hint be
lliKl llu; [)iilling liim into a
iviiulil occasion iiis deuili,
befbri! lie could xeltle Iiih
tre a S"*'^ intinilice U> lila crc-
woulil expose Ilia family lo ile-
ind tlierefore be earai-sliy detireil
■igkl eitber \ie sent lo tnulher bouic,
m **» alo Uic sin) iuclf, w ■ Urnur. Tiic
WhKWj COM ot'thii poor gentlemsn moved
A*inis™U uf the «aicl Ilnnilirulere l*) COdi-
■■•, Mt ib:i< Ihey also used their iiimoBt en-
MMWi lo diiMiade him ftom sendiii|; ibis un-
hfBf fricuDcr lo tbst infected house : but
IwifcHu,! I«rctd hini lliilher, where lie (as be
tead Ih tkvuld) caui{lil llic small'iwx, and in
tfrwdati iDsd thereof, justly cbarfpn^ the
■UBuiknilftr oidibiscleBlh ; and UDlmjipily
Iwriag all lii* aflairv id the greatest confusion,
■<iaHiti«roa* family of small ubildn-n iiilbc
ll ifiii strd to Ihe Commillee, that the let-
>l( sui af ibe Fleet tenements to fncluallei'*.
fa At >*<«plioD of ^risnuers, bfitli been bul of
tatrnctisAl, aoditiat the tint of llieni lelt for
faprpoar was to Mary Wbitwood, nho still
MMaotmaDi of the same, and that ber rent
WB«d 3il. tier arm. Iteen iocreaaeil lo 60'.
■rfannaio aunber of nriMDersitipulftied to
h^akapny of, to enable her to pay so great
ana; and that she, to procure the benclit of
klr^i web a uuinhtr nl ptisoners sent to her
h^ lialh, o*er and abore the increased rent,
I^Msrdlo makeapresrnt tolheHBid Bam-
Win •( fnrty ([uiiieas, a* also of a toy, (as it
kOU) haag tbe model of a Chinese ship,
H^^aaiWr. spt insil'er, far which fourscore
InW-fKm bad (icrn olTrTed her.
Ab* iJm' first method of extortia;;; money
^■^ anlufipy prisonen ; and wliea they
^•alaocer bearllie misery and et|ieni'eof a
lfsipaB'Ti<HMe, belbre they can obtain the pri-
•Afi tf hrtna; adiniitcd into the |<nsoo, lliey
■■•Uicedlaewnply with such e\atbitant fees
■ 1U «d Dambridge thinks fit to demaud,
rtrt. tflbey do not, ihey are vure, under ta-
Mi |s«i*nce*, of bein^ turned dDivn to the
^^MM SHki, if not put m irons and diingeous ;
■lllil* baabcra done to those who were wilbnif
■'afemi to pay the Ires »labliEhe<l by the
*~"'" m >n*dii by tbe judges ol the Common
T(iD. T«m inr, which ought to hate
^up iasume public ptoce in the priaon,
Kahich (br friaon'ri might bare free access,
ta via avcirlrd by ihi! said James Damea,
pkMni lo unirr* uf the said Bambridge;
^cb taUe iif Ifi-a srn'in* lo he unreasonable,
■■ua It oldtiTi-i tiu-u nlin are committed for
•• asini; alitr ' i' '-'-'- tti pay such
9«lSIH* II
H««T(ii
1 JU. a.rt<.i< L of inch
I ^b«!i,in< .iiiusfram
I fc nlMtasiitc priKiiic, s, il„. i„ji,l Biitubrid||:e
I ^"l |MWad* be lias a righx, as warden,
Ik nnui as luliioilril [unmt of cbtnging
a them '
John Ilug^m anclolhtri. A. D. 1729.
pristneri from room lo t^>om ; ofliirniti|[ tli
iQlo ilie common. side, thnn^h tliey bate paid
the tnaater's side fee ; and loflicting arbili ary
punishments by locking llieni down, in un-
wholesome dungeons, and Idsdtnx them with
e iuataiicet of nhich fal-
Jacob Alendez Solas, a Portneorw, was, h
far as it appeared to the Cnmniinee, one of the
fiist prisoners for delit that erer was loadeJ
tviib irons in the Fleet; the said BamliriilD*
one liny called him into the gale-house of ihc
prison, called the Lodge, iTh(.Te he candid liiin
lo be seized, fettered, and carried to Corbetl's.
ibe spungiuir- bouse.Bnd there kepi fur upwards
uf a we«k, and when bron^it back into the pri-
son, Bambriilge caused him tn be turned m[»
the dun^on, called the Strong Room of tha
Master's side.
Tbis place is a vault like those in irhich the
dead are interred, and wherein the bodies of
persons dyini! in the said prinonare usually de-
posited, till the coroner's inquest haih passed
upon them ; it bas no chimney nor fire-place,
Dor any light hut what comes over Ihc door, or
thraiiglia hole of about eight inches square, ll
Ib ueiilier paver] nor bonriled ; and Ibe rough
bricks apjiear boib on the aides and top, bcinr
neither walnscolled nor ptasleivd : what adda
lo the dampness and stench of the place is, iu
being built orer the common sewer, and ad-
joining to llieaiiikand dung-bill where all the
naslioess nf tlie prison is cast. In ihis miser.
able place the poor wretch was kept by llie said
Ilambridge, manacled and shackled for oear
two montlis. At length, on leceiving live gui-
Deas from Mr. Kemp, a friend uf Solas's, Bam-
bridge released the prisoner from bis cruel con-
finement. But though his chains were taken
off, his terror still remained, and the unbappj
was prevailed upon liy that ti
re<|uirvd of him 1 and the Committee ihem-
selres saw an instance of Ibe deep impression
his suffrrinin had made upon bim ; fur on bit
turmising, Irom souiEthiugtaid, that Baiiibridge
was to return again, as Warden of the Fleet, lie
fainted, and the blood started oitl of bis luoulli
CapMin John Mackpheadris, who was bred
a merchant, is another ntelancboly iDaiaiice of
ihe cruel use the said Bsmbridge hath made
of his assumed authority. Mackphcadria woa
a considerable trader, and in a very flntirishing
condition UDli I ihevear ITUO.wben beingbound
for large sumslo tW crown, forapersnnatter-
warda niined by the misforlunes ol that year,
he was undone. In June, 1727, he was a pri-
soner in Ihe Fleet, and although be bad beiore
paid bis commitment- fee, the like fee was es.
lorled from bim a second lime i nnd be baviog.
furnished a room. Bambrirlge demanded an cx-
travngaoi price lor il, which herefiuied to |iay ;
and urged, tlial it was unlawful fur ihc warden
i« demand extrarao'int rents, and ntl'ered lo
|»ay whal was Ivguly dqe : ^olivitli«laodil>(f
303]
8 GEORGE IL Proceedings in the House of Commons f
which, the said Bambrid-^e, assisted by tlie
laid James Barnes and other accomplices, broke
open his room, and took away sercral thinjfs
of great value, amongst others, the king's ex-
teat in aid of the prisoner (which was to have
been retamed in a few days, in order to procure
the debt to the crown, and the prisoner's en-
largement,) which Bambridge still detains.
Not content with thia, Bambndge locked the
prisoner out of bis room, and forced him to lie
in the open yard, called the Bare. He sal
quietly under his wrongs, and getting some
poor materials, built a little hut to protect him-
aclf, as well as he could, from the injuries of
the weather. The said Bambridge seeing bis
unconcerned ness, said, ** Damn him ! ne is
easy. I will put him into the Strong Room
before to-morrow *," and ordered Barnes to
pull down his little hut, which was done ac-
cordingly. The poor prisoner being in an ill
■tate of health, and the night rainy, was put to
Et distress. 8ome time after this he was
at eleven o'clock at night) assaulted by
ibridge, with several other persons his ac-
complices, in a violent manner; and Bam-
bridge, though the prisoner was unarmed, at-
tacked him wiih his sword, but by good fortune
was prevented from killing him ; and several
other prisoners coming out upon the noise, they
carried Mackpheadris for safety into another
gentleman's room; soon after which Bam-
bridge coming with one Savage, and several
others, broke open the door, and Bambridge
strove with his sword to kill the prisoner : but
be again got away, and hid himself in another
room. Next morning the said Bambridge en-
tered the prison with a detachment of soldiers,
and ordered the prisoner to be dragged to the
lodge, and ironed with great irons ; on which
he desiring to know folr what cause, and by
what authority he was to be so cruelly used ?
Bambridge replied, *' It was by his own au-
thority, and damn him he would do it, and have
his life." The prisoner desired he might be
carried before a magistrate, that he might know
his crime before he was punished ; but Bam-
bridge refused, and put irons upon his legs
which were too little, so that in forcing them
on, bis legs were like to havo been broken ;
and the torture was impossible to be endured.
Upon which the prisoner complaining of the
Sievons pain and straitness of the irons, Bam-
idge answered, "That he did it on purpose
to torture him :" on which the prisoner reply-
ing, " That by the law of England no man
oiuriit to be tortured ;" Bambridge declared,
** That he would do it first, and answer for it
aftei^ards ;" and caused him to be dragged
awaj to the dungeon, where he lav without a
bed, loaded with irons so close rivetted that
thev kept him in continual torture, and morti-
lied his legs. After long application his irons
were changed, and a suigeon directed to dress
his legs, but his lameness is not, nor ever can
be cored. He was kept in this miserable con-
iSAaa fbr three weeks, by wfaiefa bis sight is
yitly prqodioad, mid io daagcr of being toil.
The prisoner, upon this usage, peti
judges, and afler several meetings, a
hearing, the judges reprimanded Mr.
and Bambridge, and declared, << Tha
could not answer the ironing of a nn
he was found giiilty of a crime ;" be
out of term, they could not give the
any relief ur satisfaction.
Notwithstanding this opinion of th
the said Bambridge continued to kee
soner in irons till Tie h&d paid him six
and to prevent the prisoner's recov<
mages for the cruel treatment of hi!
bridge indicted him and his principal
at the Old Bailey, before they knew i
of the matter ; and to support that in
he had recourse to subornation, and ti
of bis servants out of places which
bought, because they would not swe
that the prisoner had struck the sa
bridge, which words he had inserti
fidavits ready prepared for signing, a
they knew to be false. As soon as 1
apprized of it, they applied to the loi
who ordered the grand jury down to t
where they fonnd that Bambridge wa
^es50r. Bnt the bill against the prii
mg already found, the second inquir
late.
The prisoners being no longer abli
the charges of prosecution, which ha
cost 100/. and being softened by pron
terrified by threats, submitted to plea
on a solemn assurance and agreem
with Bambridge before witnesses, of fa
one shilling fine laid upon them ; bi
as they had pleaded guilty, Bambri
advantage of it, and has continued
them and their securities ever since.
The desire of gain urged the said B
to the preceding instances of crueltj
more diabolical passion, that of malice,
him to oppress captain David Sincia
following manner :
At the latter end of June or beg
July last, the said Bambridge declar«
said James Barnes, one of the agei
cruelties,. **That he would have
blood;" and he took the opportunity <
festival day, which was on the first g
following, when he thought captaii
might, by celebrating the memory o
king, be warmed witli liquor so far \
him some excuse fur the cruelties whi
tended to inflict upnn him. But in-sc
sure he was disappoiuted ; for cantaii
was perfectly sober, when the said B
rushed into Iiis loom with a dark lai
his hand, assisteti by his accomplici
Barnes and William Piudar, and sup|
his usual guard, armed with muskets i
nets, and without any provocation gi
his lanthorn into captain Sinclair's fai
him by the collar, and told him he m
along with him : captain Sinclair, tho
Erised, asked fur what, and bjr what
e so treated him P Upon which Bi
m
iigahui John Huggins and others.
A. D. 1729.
[306
:. iinikKiMd etptaiD Sinclair, who still de* i seductHi finnicby indulpfinir them in riot, and
" ' • ^ ' • .••..•- lerrifitui otliers with fear of duress, lo swear to
and subscribe such false uffidavits us he thought
fit 10 projiarc for them, on several occas^ions;
in all which wrongs and oppressions John Eve-
rett also actrd as one of the said Bambridjre's
wicked nccnmplires.
That the said Bambridge being asked by the
Committee, *' By nhat authority he pretended
;to put prisoners into dungeons and irons ?" an-
swered, ** That he did it by his own authority
as warden, to preserve the quiet and safety of
the custody ot the prison."
But it appeared to the Commiltee by the
examinations of many witnesses, that before
the time when Gyhbon and the said Bamlnridge
I acted as deputy- wardens under Mr. Hug^inSi
the quiet and safety of the custody were very
well preserved witiiout the use of irons or dun*
(j^eons.
That the two dun^^eons, called the strong
room on the master's side, and the strong^ room
on the common side, w«re both built within
these few years ; and that the old method of
punishing 'drunken and disorderly persons was
putting them in the stocks ; and the ponisb-
ment of those who had escaped, or attempted
to escape, was putting them uiMin a tub at the
gate of the prison, by way of public shame, or
securing them without irons, in their proper
rooms for some days.
And tirat the said duns^enns were built in
defiance of, and contrary to the declaration of
the lord Kinfsf, when lord chief justice of the
Common Fleas ; who, upon an application
made to him on behalf of the prisoners of the
Fleet, when Mr. Hucrj^ns and Gybbon
ur^rcil that there was danger of prisoners es-
cnpinjj, declared, that they mi/^ht raise their
walls higher, but that there should be no prison
within a piisun.
That upon the strictest enquiry, the Com-
mittee civjld not find that any pri*ioncrs in the
Fleet for debt had been put in irons before the
said Mr. Ilu.«({;ins had the ofiicc of warden.
That it is not the oi<ly design of the said
Thomas Bantbrid^e to cxt<irt nior.-. y from his
Is kBOw by what aothority they so
hw, BMnbridge grossly insulted him,
"*', bim with bis cane on the head and
wbilyt he was held fast by Pindar
Hueb base and scandalous usage
If Aiijprtlcmiii, who bad in the late wars al-
l^iMliiiii himself with the greatest coii-
Wy,|iiiiliy ind honour, in the service of his
MtaOD miny the most brave and desperate
MHi, muit be most shocking and intole-
irikjjtlcafliiD Sinclair bore it with patience,
,fl|iifiriytO(;ooutof his room unless he
ipMM; vbereupon the said Bambridge
10 ruD his cane down his throat, and
bii gund to stab liioi with their bayo-
rdbvhim down to the said dungeon,
thcCSimig Room ; the latter of which
tiiyM,iBd Bambridge kept him confine<l in
iMvpandloithsoroe place, till he had lost
WPMffhiilimbs and memory, neither of
jlttkH he perfectly recovered to this day.
flmnnviting cruelties were used to make
fMMMmntmdre terrible ; and when Bam-
aimid he was in danger of immediate
he rmioved him, for fear of his dy in^^ in
"ti caused him to be carrieil in a dying
ifron that dnngeon to a room where
IKIM no bed or furniture ; and so unmer-
4H^ fRvnted his friends having any access
jbKji, thit be was four days without the least
^iffved to the Committee by the evidence
.nMfND and others, who were prisoners in
ebiK,tbat when captain Sinclair was forced
AMhstbeome dungeon he was in perfect
j^nSnclair applied for remedy at law
It
the said cruelties of Bambridge, and
MpKarerf a Habeas Corpus fur bis witnesses
jifcihwght before the sessions of Oyer and
"■^i when the said Bambridge, by cohiur
',UitiRnned authoiity as warden, took the
■■eriii of Habeas Corpus from the officer
•■"■Joty h was to make a return of them,
■jMntnanded him to keep out of the way,
J^tbebiroself went to the Old Bailey, and
iJ^A^y indicted captain Sinclair and such
*|il vitoesies as he knew he could not deter
P>*BtVi or prevail with by promises to go
^Aetnith.
JtMP Sinclair had temper enough to bear
^■Hljr almost insupportable injuries, and to
^^ himself for a proper occasion, when
prisoners, if they survive his inhuman tieat-
mciit, hut he seems to ha>e a f.trther \icw, in
case it eausui ilentii, of possessiiip^ himself of
their eflVets. One rv'mnrkabic juouf of which
the Cunimittre think prnper here to inseit, viz.
Mr. John Holder, a ^;'paMish merchant, was
^^ - ~.^^,. .w. wm w.<^|^. w^^«».w.., .. ..w a prisoner iu tlu^ Fleet, nml had a room uhich
Meihoukl be done nim by the laws of the he fitted up wi'.ii his own t'urniture, and had
with him all \\\s bof)ks, aceounts and writiii^^
and otljer riVi rJs, to the value dfab >ut 30,0()0/.
whicii he ('eclarcd by ailMiiivit, upon the fol-
lowing oecasiMu :
The baid Thomas Banjbrid^e, by foroe,
turned tliesp.id Mr. Holiler (»vcr to the common
side, and took possession of his room, in whicli
all his cilects were.
Mr. Holder remonstrated stronijly against
this usage, and Bambridge refu^in^j^ to restore
him to his room, or possession of !iis eflects, }'^
made a proptr atadavil m otA*»^ \cv ^VV^^ ^'*'
X
. ta the said Bambridge ha« forced others
VVfiogs and injuries beyond human bear-
Hi i^ endeavour the avenging injuries and
^P^vioiis which they could no longer endure.
^Ji' it appeared to the Committee, that the
*'BMBbridge, in order to avoid the punish -
^ dae to these crimes, hath committed
ptTf vid hath not only denied admittance to
wiificitori, who might procure justice to the
^^ prisoners, and in open defiance to the
■*! tebeyed the king's writs, but hath also
VOL XVII.
307]
3 GEORGE II. Proceedings in the House of ConimunSj SfC»
jiidj^es for relief, and declared that be feared
his eflects ini^ht be embezzled whilst he was
thus unjustly forced irom theai, and that he
feared Bainbriiige's cruel treatment of him
would be the cause of his death : the miseries
of the common side, which he dreaded, had
such an eHTcet upon him (being a man of
an advanced age, and accustomed to live in
ease and plenty,) that it threw him iuto such a
fit of sickness as made his Hfe despaired of, and
io his illness he often declared, " That the vil-
lain Bambridge would be the occasion of his
death." Which proved true; for liambridge
finding Mr. Holder like to die in the duress
which he liad put him into, (for his own sake,
to avoid the punishment inflicted by law upon
gaolers who so inhumanly destroy their pri-
soners) permitted him to be carried back to his
room, where in a few days he died of the said
sickness, contracted by the said forcible re-
moval of him to the common side by Barn-
bridge, as aforesaid.
Air. Holder by his last will appointed mnjor
Wilson and Mr. J;ohn Pigott trustees for his
son, a youth of about 13 years of age, who had
accompanied hiiu in the time of nis contine-
meot.
This young gentleman, aApr bis father's
death, locked up his eflects in several trunks
and boxes, and delivered the keys thereof to
Mr. Pigott as his trustee, who locked up the
room and took the key with him : but the said
Thomas Bambridge caused the said room to be
broke opeu by Thomas King, anotlier of his
accomplices, and caused the said effects to be
seized, after that he, Bambridge, had forced
Mr. Pigott out of the prison, (though a prisoner
in execution) and locKcd down major Wilson
(the other trustee) in the dungeon, to prevent
their taking any inventory in behalf of Uie heir
at law, then an orphan.
These evil praclicus of letting out prisoners,
extorting exorbitant fees, sufleriug escapes, and
exercisingall sortsof inhumanity for gain,maiy io
a great measure be imputed to the venality of'the
warden's oflice ; for the warden who buys the
privilege of punishing others, does consequently
sell his forbearance at high rates, and repair his
own charge and loss at the wretched expencc
of the ease and quiet of the miserable objects in
his custody.
Upon the whole matter Uie Committee came
to the following liesolutiuns, viz.
Resolved, That it appears to this Committee,
tliat Thomas Barobri<W, the acting warden of
the prison of the Fleet, nath wilfully permitted
several debtors to the crown in great suras of
roone}', as well as debtors to divers of his ma-
jesty's subjects, to escape; hath been guilty of
the most notorious breaches of his trust, great
extortions, and the highest crimes and misde-
meanors in the execution of his said office;
and hath arbitrarily and unlawfully loaded with
irons, put into dungeons, and destroyed pri-
soners for debt under his charge, treating them
in the most barbarous and cruel manner, io
high violation and contempt of the laws •
kiugtium.
Resolved, That it appears to this Comi
that John Huggins, esq. late warden <
prison of the I*leet, did, during the time
wardenship, wilfully permit many consid
debtors in his custody to esca|>e, and w
torioosly guilty of groat breaches of his
extortions, cruelties, and other high c
and misdemeanors in the execution of hi
office, to the great oppression and ruin of
of the subjects of this kingdom.
The Resolutions of the Committee beii
verally read a second time, were, upon the
tion severally put thereupon, agreed ui
the House, and are as follow, viz.
Resolved, nem, con. That Thomas
bridge, the acting warden of the prison <
Fleet, hath wilfully permitted several d
to the crown in great sums of money, ai
as debtoi-s to divers of his majesty's subje
escape ; bath been guilty of the most not
breaches of his trust, great extortions, ai
highest crimes and misdemeanors in the
cntion of his said ofiic£ : and hath arbit
and unlawfully loaded with irons, put int(
geons, and destroyed prisoners for debt
his charge, treating them in the most barl
and cruel manner, in hip^h violation ant
tempt of the laws of this kingdom.
Resolved, nem. con. That John Hui
esq. late warden of the prison of the Flee
during the time of his wardenship, wi
permit many considerable debtors, in his
tody, to escape ; and was notoriously gui
great breaches of his trust, extortions, <
ties, and other high crimes and misdeinc
in the execution of his said oifice, to the
oppression and ruin of many of the subjc
this kingdom.
Resolved, That it appears to this 11
That James Barnes was an agent of, ai
accomplice with the said Tikoinas Bamt
in the commission of his said crinu's.
Resolved, That it ap|>ears to this II
that William Pindar was an agent of, ai
acc<impltce with the said Thomas Bauil
in the commission of his said crimes.
iiesolved. That it appears tu this 11
that John Evcrt'tt was an anient of, an
accomplice with the said Thoaias BamL
in the commission of bis said crimes.
Res'jlved, That it appears to this 11
that Thomas King was an a^rf^Qt of, ai
accomplice xi itii the said Tliunias Banifa
in the commission of his said crimes.
Resolved, tiem. can. That nii humhh
dress be presented to his majesty that be
be graciously plfased to direct' his attoi
general forthwith to prosecute, in the
effectual manner, the said Thomas Bamb
for his said crimes.
Resolved, nem. con. That an humble
dress be presented to his majc-stv ilnii hi
be graciously pleased to direct bis attoi
geucral foruiwith to prosccutei in Ui«
309]
Trial nfJohn Htiggim.
A. D. n2<>.
[310
■ffflclml mtDner, the said John Hugvius for
a:4 cnincs.
Rnolredy That an humble aiMress be pre-
KMr^ to hm mHJcstv that be will be ^raciuusly
plttifd to direct liis attomry-f|;eneral forth-
with 10 pr09t!cute, iotbe ODost c flertiinl manner,
ihcuid James Barnes, William Piniiar, John
IwMI, and Thomas King, for their said
€Msed, That ttie said Thomas Dambridjcfe
It SHunitted close prisoner m his niaiesty's
!■( af Newgate, and that Mr. Speaker do
■H bis warrants acroriiin&^ly.
Mrrrd, That the said John Hugrgins, esq.
Iresninitted close prisoner to his maitntjr's
p«l of Newgate, and that Mr. Speaker do
■SK his warrants according! 3' .
Oirdered, That the said James Barnes be
csanitled close prisoner to his majesty's gaol
•TNevsmte, and that Mr. Speaker do issue his
vmiBla accordinglv.
Oidcred, That the said William Pindar be
t— miued dose prisoner to his majesty's gaol
tf Newgate, ami that Mr. Hfieaker do issue his
vmants accordingly.*
Oidered, That the said John Everett be
■■■itted dose prisoner to his majesty's gaol
tf Vrwgate, and that Mr. Speaker do issue his
■euordingly.
Ordered, That the said Thomas King be
committed dose prisouer to his majesty's (^ol
of Newgate, and that Mr. Speaker do issue
his warrants accordini^ty.
Ordercil, firm. con. That leave l»e given to
bring in a Bill to diMilde the said Thomas
Bam bridge to hold or execute the otHce of
warden of the prison of the Fleet, or to have
or exercise any authority rdating thereto ;
and that Mr. 0(;lethnri>e, Mi*. Earl, the loni
Percivall, and Mr. Hughes do prepare and
bring in the same.*
Ordered, nem. con. That lea?e be given to
bring in a Bill for better regulating the prison:
of the Fleet, and for more effectual i^event-
tng and punishing arbitrary and illegal prac-
tices of the wanlen of the said prison ; and
that Mr. Oglethorpe, Mr. Cornwall, Mr. Glan-
▼ille, and Mr. Hughes do prepare and bring in
the same.
Which Bills passed into a law.
They also enquire«l into the state and coddi-
tion ot the Marshalsea prison, and ordered a
prosecution against William Acton for murder.
See the fdlowing Cases.
* As to some of the proceedings hereupon,
see 4 Haiseli's Precedents, title Iropeachment,
chap. 3.
479. Tlie Trial of John Huggins,* esq. Warden of the Fleet Prison,
for the Murder of Edward Arne, at the Sessions-House in
the Old- Bailey, May 21, before Mr. Justice Page, Mr. Baron
Carter, and others his Majesty's Justices : 3 Gjeokge IL a. d.
1729.t
Tuetday^ May 20, 1729.
Proclamation was made for all persons cou-
CRBcd to attend.
CL nf Arr, \ OU good men, that are im-
yiaaellcd to enquire, &c. answer to your names,
ladsafe your tines. John Huggins, hold up
%hand. (Which he did.)
CUrk, Thou standest indicted hy the name
•f Jeba Huggins, esq. warden of the Fleet, Aec.
[The Indictment being inserted with the Spe-
ciii Verdict at the end of tliis Trial, is omitted
^.] How sayest thou, John Huggins, art
• See Fitz^ib. 177. 1 Barn. 358, 396. S
^ 882. S liord Raym. 1574. East's Pleas
■f the Crown, chap. 5, § 92. See, too, 8 Term
Bip. 457, and the Cases which follow this Ar-
tde. tier, too, 3 P. Wms. 494.
t These Trials
of Huggins, Bamhridge and | i^^" ™rown,
were all taken in shirt- hand by Mr. P«t« Sujoumey,
I to the Committee api^nted T°^™r.P'^'
like BkCDD, (Clerk to the Committee appointed
kcoqmre into the gaols of the Fleet, Narshal-
■a, 4w.) who in nis life-time asked 200/. for
it csyy ofthea. jForawr JBtfi^ioii.
thou guilty of the felony and murder whereof
thou stamiest indicted, or Not Guilty.
Huggins. Not Guilty.
Clerk. How wilt thou be tried ?
Huggins. By Gi>d and my country.
Clerk, God send thee a good deliverance.
Wednesday f May 21.
Proclamation was made for information.
Clitk. Thou the prisoner at the bar, these
men that thou shah hear called, and personally
appear, are to pass bet^reen our sovereign lord
the king and thee, upon the trial of th}' lite and
death; therefore, if thou wilt cballeuge them,
or any of them, thy time to speak is as they
come "^ to the book to be sworn, before they are
sworn.
Jury.
Philip Frusliard, Thomas Clayton,
John Hoar,
Martin Wardell,
Richard Pitt,
John Milward, John Price,
Daniel Town, James King,
Clerk. John Uuggitis, bold up thy hind.
311] 3 GEORGE n.
OVhich he did.) Yoo of the jury look upon
the prisoner (and was goings on.)
Muggins, M V lord, the disUoce is too ^^reat
to be hf ard : 1 desire I may come to the inner
bar; for, rov lord, when any niGonTenieuce
happens, it is the constant rule to admit the
prisoner to come there : it was done in the Case
of Sanders and Clifton. •
Mr. Just. Jfage. Whenever the Court con-
cei?GS an inconvenience, it has been allowed :
but I csDiiot allow it till then.
Clerk. You trentleinen of the jury look upon
the prisoner; he stands indicted by the name
of, &c.
Prout the Indictment muta^u mutandii,
Huggim. 1 must desire, mv lord, to have
the indictment read in Latin. (VVhich was ac-
oonlingly done.)*
Mr. Holland. (Member of parliament for
Chippenham.) My lord, and you ^ntleroen
of the jury, I am of counsel for the kingf ; and
this is an indictment against John Huggins, for
aiding and abetting James Barnes in the mur-
der of Edward Arne ; that John Huggins was
warden, and one James Pames was then his
agent, who did in November, in thf 11th year
or his late majesty, make an assault upou Ed-
ward Arne, and took Arne involuntarily, and
confined him in the strong room (without the
eoiofort of lire, olose-stool, or other utensil),
built near the place where excrt*ments are
thrown out, a place very unwholesome, and
most dangerous to the health ; that Arne fell
sick in the said room, and languished till the
7th of December, and then dieil; that Hug-
giuR, through l)i« cruel dis|K)sition, l»eing an
opjir(>t»sor of' the prisoners, di.l, &c.
8crj. Ches/iitc. My lord, and you gentlemen
of the jury, James Barnes, who stands indicted
for the murder of £ilward Arne, is tied from
justice ; anil John Hoggins the prisoner at the
liar, also btoiids indicted for aiding and abetting
in the said fact. He was then warden of the
Fleet, and had the custody and care of the pri-
soners then committed to his charge ; there-
fore it will be necessary to let you know what
bounds the law sets to gaolers, and In prisoners.
The law sets fences to them both: the gaoler
is to be protected in his duty, supported and
niaintained in it; and it is juitifiable, if, in de-
fence of himself, he destroys a luaii, and com-
mits an act of felony : on t'iie other hand, if by
any unnecessary tyranny, or restraint, any of
the prisoners come by u*n uniiriiely death, it is
murder in the gaoler ; and this lost is princi-
pallv nccesHary for your attention.
F^duard Arne, on the 12th of May, ir25,
wa'i committed upon mesne process; he was
a quiet, peact'sihle, and inuflPi-nsive man, and
coutiuued i;o till Septeml^er in that year, ihe
gcntlrinan at the bar, not com ent with 'iii' tuMne
Kccurity that his predtcrssors hud, took it in his
bead to innke a strong room, which was built
about three months before the death ot Edward
Trial of John Huggins^
[312
* See A Note, i A foi. 19, p. 1998.
Arne ; it was like a vaolt, boiU Of«r the oon-
mon sewer, near a kiystall, where the filthy
matter was lodged, nothing but bridDi and
mortar, not tiled or pointed ; and in thia ooe*
dition, about September, one Barnce, aervaat
of the defendant, came to the said Arne, M ha
was sitting in the cellar, rushed upon hioa, aid
took him away to the dungeon, a place v^bcM
nobody had been put in before; in this nii
place of restraint he was confined, though l»
was in a quiet condition : there was no fire» mm
flre-place, no light but through a hole ever the
door, and a little hole by the aide, big eoeadi
to put a quart pot in at ; there waa not Im
want only of fire, or fire place, but there mm
no chamber-not, no convenience for the eMa af
nature, so. that it roust fall, and be convene
with it : the place was so moist, that dropa qf
wet ran down the wall The roan immediaisly
lost his voice, his thn»at was swelled, and hm
clothes rotted with the dampneas of the placi^
and the poor man, huving a feather -bed,
into it, and the feathers stuck ckiae to bin., (
in this condition he lay; but one day, the
being open, he got out, and ran into the
mon hall ; he looked, gentlemen, mecc like n
feathered fowl, than an human creatare. Thii
waa represented to Mr. Hoggins, who gene^
rally Uved in the country, and did net oome li
the gaol so often as he ought ; but at one tiiB%
when he was at the prison, he aaw tbe HMjk
and the poor man just saw him, his eye fal(
the door was cloi>eil, and he died : the wsidi^
gentlemen, bad the door shut, and ordered him
to be lucked up, and he continued so locked m
from September till the 80th of October; aai
it is wonderful to think (if he had not been n
man of a very strong frame) how he cookl have
continued there so I'-ng. It moved the eeen-
passion of his fellow- prisoners, who applied la
have him released out of that place, but that
not being done, a little care was taken toatp
tend him. Gentlemen, at the time when Mr.
Gybbon was deputy, some of the priaonen
askefl him, Why he did not take care ot' Arne,
fertile man cannot speak? And anawer waf
made by Barnes, Let hint die and be damned ;
and this was in the prcsent*e of the warden*
Gentlemen, 1 must observi. lo you. that for ee-
cnrity of the lives of prisnuers, the corooer^
inquest ought to sit upon ihem, to see if may
marks c<HiTd be found to give an inforniatioa u
the cause of death, but this was not done: ibia
is the tiubstance of the evidence, which cnnnaC
be aggravate<l.
Ait. Gen. (sir Philip Yorke, afWrwarda ceil
of Hardwick and lyird Chancellor). My lord,
and you i;ent!enwn of the jury, I am ot coun-
sel for the king, and this proseGuti<>n is the
cfftfCt of a useful, compassionate enquiry ooo-
cerning the gaols, so it was found nccesaery
to bring the cause liefore you, that gaolers OMy
be punished, who have 0|i|M>riunity, and bevn
endeavoured to oppresa the imfortuuaie
■iider their charge and |»ower. It ia
there ahonld be gaols awl prisons, and that
aona should be under confinement i but mtitm
1
1] for the Murder of Edward Arne.
■riaNlHK ii io tlidr power to CMnmii op-
Hl^ IMBWtulcruclliea, Io the kai of tfaa livu
A. D. 1199.
tSM
WH Aitv*. Al thM time e* cd tbs prwoner niv
him laQgnuh ; hit speech wu lout, nod tfaea
b« Ungublied, and cuaunued ia Ihe duDgeon
till tbt: time «f bis deatli ; thu will app«tr
cltfviy by tbe eTidence, (bit Le dieri in duraw,
aud ibat the di4tein|tcr (here coatracted wa*
ibe OGcaaion of hii death. The next eonai-
deraiiuD ia, who, and what was lUe occaiion of
hit death ; it it the doty of ths gaoler to ban
a coroner's iuquett la oof uire into tlie death t£
a pritnaer, foT hit own justili cation, who, hy
haTing' tiie cududv or, and the ttower ajet kw
priMDen, nay deatmy tlieia ; ttietefore, if
there was do particular reanoa, why thould it
Dot Itavfl beea done? Though he raaaot pi«-
Icud to thew a (larticular onler why be did not.
When I OMiaider, that uotbinif cguld badOM
but by his authority, DOtbing dune but by bia
direction, tLit wan bis (Mriicular ordar.
If b" wbu was Ibe |irinci|ial gaoler, wh»
bad tlie authority to coofioe oiio, and ia dii-
charge bim froui an iinprojier coDfiuenenl, wb*
saw him there did not relesK bim, but iiMlMd
imbhie brick and nortar: opan wkat diet in duress of the t^auler by bard enpflw-.
MMIailaNluiJl, tbf prisuBcr will gireyou menl, in • cruel mannvr, uaueeesaary to (ba
■i^RM. it lie liBil Buy autbaritjr for bjild- gauter'i safe caWody, it is death by la* ; if lb*
■i Otin^ are lu take care ol prisoaera, gnoler ia not aosnerable fur tliw act, wbal
■■■■•iKiUdaii&t^iiB 10 putlbcm in; tbe needii the dead pMWJOt Io be enquired after by
*fc *«" ou lit}, bui Tcrydsmp and no- i ajuryf Justice ouiflil be d'loe, iel it fall ob
^^■Mt, «> uiually sneh placet oiusi he. wlioinil will; aud I do not doubt, botthajurf,
wlititticiriihtamling in ibe cellar iiMfeii' I for Ihevakeol'lheir oalbs, will liud liiin ifuiky.
Wf, Stnn, wlia was eutriiKcd with the Sol. Gea. (Hou. Hr. Talbot, alUrwank k
■Mlfltf |irisi)net«, Bei/eil him and p«l him Peer and I»rd Chapcellor.) We will call sor
■Mfln, ind he wasihprepiitwitliont any etideucrto proie the facta.
^Wifpmigiaii la sHKiain life; there w
ce of the alBiott op-
tt cruelty. Hr. Hug-
_.._ Fleet prison, and had
cuHaJy of the priaonen, and
Ml^paull), nr by liis deputy, to take
■ MpiB, >iiiiu is answerable' for tbem :
~ "' ' itiie came a priaoner io May
iauad ibere lilt he died. At bis
I, be liKlged Willi -one Bcbcrt
f difference bappeniug betweeu
tek Ku uiiiKd out of that room, and Iaj
. aditniuiiiialitll. This nabappy raao wsa
I alakiLHilKnt ia bii aeuacs, which his
■■I al|;lil reisanohlv oeoaaion ; be was
fuiet oMu ; nt about tbis lime,
t* jjchetiie of baTioe a pritou
.■hub » as the ooeaaMH) ofibeir
f op^rmioae u|>oii ibe prisoaera.
inaninas tbeoereotcdin (ha dud-
ftniih, cominouly called
iMiblc w],fre yoo niiKbt put a liule driok
ifltHUKs III' bail an opportunity uf
It. ami wiiiieliaiea nooe. Undi;r this
111 |ieraii> u»s krpt, without any
Mo p.a!<r nature; thedescri^ou it
iiu more evtry Irady to cnmpaHainn.
•l[u<:eoil lu w iih him, and he ripped
crfpi lotu il lo keep himself H-arin,
litrssiiji'k to hia:i by reason of his
•*f bnm^ar^ wiUi bin own ordure, which
■W Ml a|i|>OTliiiiiiv of dnjfl|[ out of llie
m- Dunau ilii- uliule time whilat Arne wih
*bal, Mr, llii^rgius, wlio was then narili'n,
[ «t »>«, ihou^b be ought to bate corae
'■B'laadbis duly retjuirel him so In do :
vSoggins looked upon him thete, aodaaw
Wtia tbai ooodiiion, io tbe place built by
■tvs order; but the priaoner, ao far fram
RUflt any relief, or maoriog him out of
afiacmeiit, orilered llie door to be locked
f ■ kta prcBotce, be being warden, aud by
aaalborily. Tliit affectiog cnudilion tiie
WMaa wa« in, aud Jn tbe ciiwaraitaikce be
■sia, he augbt to hate rdierod bim. tie-
•danbcMiant were made to Gybbon, and
kvifaaaersaat* uf tlte warden, tu desre this
t^ifiy man to be releaaed i lellu:s were sent
Mw bianiaeraUe cmtdition, that he vat
I likely to live, and to desire that he mi^lu
tm atitt m futyar «urta|lj j but aalbtng
Call Richard Longbom. (Who wat awoni, aa
were all ibe rest that appeared.}
He produced a copy of Mr. Huggiot'a
patent, brarin)^ dale the S2d July, the 19lh
queen Aon, wlucb U^ proved to be u true oo|)y,
and Mich part of it wat raad as prored him to
be warden.
Huggint. Uy lord, I desire the Habendum
may be rtad. by which I hare a power to ap-
poiut a deputy or depuliea for and durjug inj
oat oral life.
Mr. Just. Page. I don't know what use yon
will make of it; but you may call fur it ia
yourdetieDce.
JUAert Bigrave awom.
Sol, Gtn. Do you know ibe prisonCTf
Btermc. Vpry well,
Sol. Gtn. Uuw loagbareyOD known hittf
Bigravt. I knew him when J waaCkrkof
the faiiarB, in April 17S5.
Sot. Gen. Did he aci i
Bigratie. lis was warden, but did BOtact;
Mr. GybbcD was deputy lo .Mr, Huugiiu.
Sot. Gen. Who conalituted you Ckrli ofliia
PajwrsP — Bifirave. Mr. Hugf^nt.
Sol. Gtn. Were Ibr securities tsken ia tba
aaiue of ftlr. HuggiusP
Bigrave. The security booda were taken,
and returns madeiu tbe Dame of Hr.Uo^
1.4.
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' ' ,• i - -- ^ -IS ▼ -~- 1
. »'. * .! I* --■-■■ - '.--•:•*. 'Mis -■
■ ' " !»•:*■ •..- . ni": ; n
■- -. • ■»' « \ Jt- z '• '- '■'■ •-'•' :•■■•- ': . ;-
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V v^/ »«■» ; i** ■ I.*-* * A ••--•; •
."* . ».' : ;.'«^ Vi Mr 'rf-.w:-.. u;.
»•'• ;»• -f'. .•^r i«»n .'•%t<'1 t** I
■
thff"* '1 tin wurrrkiitH were gene!
Jiit the Murder ofEdtioard Arne.
▲. D. 1729.
[318
0 office, aod signed and gealed in
Lbey were filled up by Mr. Oyl>bou,
lod sealed by Mr. ilu^gins.
. Id whose name were the war-
led?
The warrants were returned in the
!r. iluggins, but by the direction of
D.
. Was Barnes my servant or Mr.
He was allowed to be a servant to
D. '
ke Page. I will ask a question
. 1 must beg^ leave, my lord, to
lestion more, and then will make
rations upon the evidence.
,ce Page, It is not proper to break
\ evidence to make any observa-
. This is the grand point.
ice Page, Whetlier it is or no, that
mod. If you insist u|)on makinfi^
kfl now you shall ; bin I think it
yom: prejudice, tor by that you will
d from making your remarks upon
' the evidence.
. My lord, 1 will then submit.
ice Page. If you will ask Mr. Bi-
Dore questions, you may proceed.
. Did you hear of any ill-usage from
oan (meaning Mr. Arne) P
I remember Mr. Arne was there,
lew no such man, and heard he was
groom.
. Did you hear of any alteration
ade in the strong room while Mr.
lere?
I never heard of any alteration
time.
, Did not Gybbon keep two distinct
le and the same hutise ?
in the ycnr 1725 he did.
I. . Pray distinguish nicely as to
ggins, and Gybbon, whether Barnes
»loyed as watchman while Huggins
il, and Gibbon deputy- warden;'
lie was.
, Who put you into your office?
Sir. Uuggins put me into the
1 made an agreement, and was to
il me out of each day -rule.
D Carter, Who made the agree-
I made the acfreemcnt with Mr.
id paid 700/. to Mr. iluggins and
I.
D Carter, Who put 3Ir. Barnes in ?
Blr. Gybbon.
B Carter, fiow do you know f
1 beard so.
CSall Richard Bishop.
Wlial arc vou ?
was tipstaff to Mr. Hucfgins, pre-
HMpm came to his utfice, and
ll.lSrit. .
Sol. Gen, Who was deputy then?
Bishop. There was no deputy- warden, only
Mr. Dickson, Clerk of the Papers.
Sol. Gen, When did Gybbon come there f
Bithop, In the year4724.
Sol, Gen. What time did Arne become a
prisoner ?
Bishop. In 1724 or 1725, T brought him
down from the judges chambers, and put him
at the Vine as usual.
Sol, Gen. Why did 3'ou not bring him into
the prison ?
Bishop, Because he thought to give se-
curity.
Sol. Gen. Was not that a spunging- bouse?
Bishop. Yes.
Sol. Gen, How long did he continue there ?
Bishop, About two months.
Sol. Gen, Where did he lie, when he went
into the gaol ?
Bishop. When he went into the gaol, 1 did
not trouble myself about it.
Sol, GcH. Do you remember the building
the strong room ?
Bishop, I do remember its being built in
1725.
Sol. Gen, What sort of a place is it?
Bishop, 1 have seen the outside, but n<sver
saw the inside; 1 believe it is built over the
common-sewer, and but a little way from the
dunghill; the ashes and dirt of the boose is
flung down there.
Sol, Gen. Did you see Mr. Arne there ?
Bishop, I saw him once in the long room
out of his clothes, before he was brought into
the strong room, and I complained to Mr.
Gybbon, and said he ought to be sent to Beth«
lem, but he put him in the strong room.
Sol. Gen. Can you tell of any complaints
made about Ame's being put there ?
Bishop. I did apply to Mr. Gybbon, and said
it was better to keep him in his own room, ^or
if a wise man was put there it would make
him mad ; and it would have made me mad if
I had been put there myself; and i heard Mr.
Gybbon speak to Mr. Hopkins to acquaint Mr.
Huggins, that as Mr. Taylor was one of the
governors of Bethleni, and Mr. Hu|;gins's
friend and acquaintance, he might easdy gft
him in there.
Huggins, It was no part of the office of
warden of the Fleet ; but 1 might, by a friendly
office, use my interest with Mr. Taylor, and
that would shew me more a humane man, than
one guilty of cruelty.
Sol. Gen. Did you see Mr. Huggins in the
gaol, during the time Mr. Arne was in the
strong room ?
Bishop. 1 saw Mr. Huggins there several
times, but can't say whether then or not when
Mr. Arne was in the strong room.
Sol. Gen. Was he any way abusive ?
Bishop. 1 never heard that Arne was any
way abusive, or needed any such restraint.
Sol. Gen. What was James Barnes ?
Bishop. He was to take up people that the
wardeu directed him to take up, and acted .as
319]
S OEORGB IL
watchniaD in thei^, and wm lerruit ttiMler
the warden.
Sol. Gen, What time waa Arne pat id the
strong room ?
Buhop. lie came into the priaoD before the
alroog room waa bailt.
Soi. Gen, Do you remember when it waa
bnitt^
BUhop. It waa built in 1795, 1 belieTeatthe
latter part uf the summer season.
M, Gen, Do you remember the time while
Ame waa there? — Bishop, I do.
Sol, Gen. Waa there any thing of eonse-
quence done in the gaol, without the direction
of Mr. HugginsP
Bishop, Nothing of couseqnence was done
without bia direction ; but the common busi-
ness of the gaol waa done by Mr. Gybbon's
direction.
Sol. Gen* Did you ever speak to Mr. Hug-
gins in relation to Arne's confinement ?
Bishop, 1 believe I might speak to Mr.
Gybbon, and 1 beliere I might speak to Mr.
Huggioa, for 1 frequently did speak to him
about business.
Sol, Gen, What condition was Mr. Ame in,
when brought to the Fleet f
Bishep, I think he was in his senses, he was
inoffensive, and I think there wss no occasion
to confine htm ; I saw him several limes walk-
ing about the yard, and if he had been confined
to his own room anv-body might have looked
after him, even if it nad been a child.
Ss/. Gen, Had be any bed whilst in the
Strang room?
Bishop, I think he had no bed there, it was
a dark place, I could not see into it.
Sol. Gen, Did Hug^ins use to come there
after Gybbon was deputy ?
Bishop. I saw Mr. Huggins there several
times afcer Mr. Gybbon was deputy- warden,
and Huggins used to give directions, during
the time Gybbon was his deputy, and Hop-
kins used to bring orders to Mr. Gybbon from
Mr. Huggins.
Sol. Gen, In what condition of health was
Mr. Arne when he was brought in P
Bishop. He was in a good condition of
N kealth, and in his senses ; ami I believe, lieing
put in the strong room in the Fleet, would have
killed sny-body, and thai iliat forwanled Arne's
death, and he would not have died so soon if
lie had not been there.
Huggins. When von Rpoke to Mr. GyNion
to apply to me to make intei-est to the governor
of Bethlera, whether it was guatenus wardrn,
or only as I was supposied tu have acquaint-
ance or interest ?
Bishop. It was l» apply to you as warden.
Huggins. Were there not women prisoners,
and meu's wives in ttie gaol ? — Bishop. Yes.
Huggins, My lord, it was very unfit for a
maa to go naked about where* there were
women, and it waa §1 lie aliould be con*
Ased somewhere. Whose aervant was JanKs
Baraca?
Biaktj^. Mr. Ojkbaii*a.
Trial of John Huggins^
Mr. Justice Page. At the time when
about naked, was there no other room
could have been put in ?
Bishop. There certainly were oChe
where be mifi^lit have i»een put.
Mr. Justice Page. How often have 3
him naked ?
Bishop. 1 saw him naked but once.
Mr. Btfron Carter, You said Gybb
some directions, and Huggins gave 1
rections; now during the time that
acted, did the prisoner, Mr. Huggins. |
directions as to the m(»ving of prisonen
Bishop. My lord, I never meddled w
was done in the inside of tlie prison,
inform yon.
Call Mr. John Cotton.
At I. Gen. What ofiicer are you b<
to the Fleet?— Co^^ora. Clerk ot the ¥
Alt, Gen, Pray see what time A
committed ?
Cotton, He was committed the 13th
1725> at the suit of John Martin am
upon mesne process.
Huggins, I desire he may see, whei
bec:ime a prisoner P — Cotton. In Hilar
Att, Gen, Is not Barnes still a priisc
what is beoome of him P
Cotton. He was a prisoner, and
liberty of the gate; and when the ord
House of Commons came for taking
custody, be ran away, and Corbet ha
voured to find him out, but could not.
Att. Gen. Was Arne charged in ex
Cotton. No, he was not.
Call Mr. Thomas Farrington.
Aft. Gen, Did you know Edward ^
Farrington, I did, and the first timt!
came into the prison, it was l>etween
and 28th of June, 1725. He was sc
at the V^ine before.
Att. Gen, What state of health was
FaYrington, When he cnme into 1
prison he was in a gotxl state of he
tree from any sort of dclirioiisness, am
sa^ him do any ihiug amiss to man,
or cliild.
Ait Gen. Do you remember his be
finetl in the strong n>om P
Farrington. 1 do remember Ins be
fined in September, and that he died in
Alt. Gen. When was the first t
knew of his contineinent ?
Farrington. The first time I ever
his being confined, I heard he was ca
the strong room by Barnes, by the din
Gibbon, dc|»iity- warden to the prisot:
bar, and he had lain bel'ure that in n
with Kul>ert Shaw, and upon some di
being turneil out of that room, he th
the common -hall. U|»on a bed of I
which he laid upon part of a broks
bedstead.
Att, Gen. Wlien was tbe first liiM
Ame in the strong rooss f
»l]
Jor the Murder of Edward Arne.
A. D« 1729.
[S2S
1. I Htw him the very day he was
pstio.
Att. Gen. What sort of a place is it?
Furington. It is a room arched o?er liJce a
nuh, aDil bad been new erected about six
vedu, and the walls were very damp and wet ;
jta ught strike off the drops with your hand
Hc lbs dew on the top of the fgnms in a morn-
ing; ibere was no wainscot nor plastering,
Ikytvm some boards at the bottom, but wbe-
Ihv oiirely boarded I can't tell. It was a
nrilaidied over, and when Ame was carried
hMiilBd; there was a window over the door
llm^rters of a yard long, and another on
ikaie of the door seven or dght inches long,
mihm wide, and no fire- place, and the com-
Ms-Kwer runs under it.
Alt. Gen. Wliosupplie<l him with victuals ?
fvringion. I saw Mr. Louden give him
Att. Gen. Who kept the key of the room ?
Icrrington. Barnes.
Att. Gen. From the time that Mr. Ame
■winlfi the prison, which was between the
lOlkftBrf V8th of June, till he was put in the
rotini, what state of health was he in ?
Immgton. Ue continued in a good state of
till a little before he was put in the
room, and then he grew somewhat dis-
; ami from the time he was put in the
roam he altered every da v, grew hoarse,
mi atltiteould not speak, and he grew weaker
id vtakcr every day ; about the beginning of
Offcerbe hwt bis voice, he grew then delirious,
ttinpl o|ieD his bed, and crept into the fea-
tbm, lod fine day came to the chapel with ex-
cicanit and feathers sticking ubout him like
a niifpye, lieing forced to case nature in that
p'ace; ind after that, I saw the prisoner at the
ur, led Hopkins, looking into the strong
imb (die door being open) upon Arne, and
Anenas lyinc in the bed ript open, and covered
■uch 'Jynix as high as hisi navel.
An. Gen. Dill you hear Arne speak ?
i'%rnn^toa. He was very hoarse, and could
BK fpeak, but lilted up his eyes, and looked at
MLllut^i^iu't.
Ait. Gen. Did HufTgios then sec him ?
Farrin^tun, Mr. llugt*ins must see him, if
k»u rpii blind.
An. Gin, Did yon hear them speak ?
hrriHffton. Mr. Hoggins and Hopkins
*^leretf , but I did not hear what they said ;
ktHa^ifins shook his hoad, then Barnes shut
^duor, and Hn^^gius and Hopkins were then
Ngauray.
Mi. Gen. How long after was it before
Inedieil? — Fnrrington. About fourteen dayh.
Mi. Gen. Did you see Aru« Initwcen this
^•f Hiiffgiu* being there and his death ?
hrringlon. I saw him the morning before
nM^ tnd at that time he was so weak, he
^ not stir any way, but there lay gaping
vbe.
Ml Gen. U'hat was the occasion of his
M ia that languisbing condition ?
tirrim^tiin. Arne'i coBfinemeat was the
TOL XVII.
occasion. I was in-the strong room three days
myself with one Smith, my legs were so
swelled, that the small wus as big as my thigb^
and 1 never knew a day's sickness till tliattime^
and if I bad continued a week longer it would
have killed me, and I was forced to buy paper
to ease nature in, and fling it out of the window.
Att. Gen. What is tlie situation of that
room?
Farringfon. Its situation is at the furthest
part of the prison northward, and there is a
sewer under it, into which runs the water from
the pump to carry off the excrements of the
Erison, which are emptied into it, and the dung-
ill was then about six yards from it.
Att. Gen. What distance is there between
the strong room and the dunghill now f
Farrington. About eight yards, and all the
nuisance of the house is flung there, and them
are very bad smells.
Att. Gen. What was the occasion of Um
death of Arne?
Farrington. I think it was the strong room
was the occasion of it, for it was enough to
kill the strongest body.
Att. Gen, Did Arne die there?
Farrington. He did, and Mr. Huggins al-
ways said he had authority to put persons in
tlie strong room, or irons, which 1 can prove
under his hand (and was going to pidl out a
paper, which not being allowed as evidence, he
desisted.) I saw Mr. Huggins a second time
walking upon tlie Bare with Gybbon and
Levinz, between the hours of eleven and one, a
week or a fortnight alter which he was at the
strong room,
Aic. Gen. IIow long did Mr. Huggins stand
looking upon Mr. Arne in the strongroom ?
Farrington. Ahout three, four, or five
minutes, and he then stood looking at the door,
as I now .Mand looking at the counsel.
Att. Gen. Was Ame let out of the strong^
room afterwards?
Farrington. I never heard that Ame was
afterwards out of the strong room till he die<l.
Huggins. Did iiol you make some aiiidavits
by way of complaint to the Court of Common
Pleas i* — Farrington. Ves.
Hugging. Please, my lord, to ask, Whether
or not Mr. Arne was meutioned in that com-
plaint that he made ?
Farrinf^ton. I never made but three afKdavits,
two of which 1 have in my hand in print, hut
don't remcmlier Mr. Arnt's being muotioucd
in either of ihem.
Huggins. My lord, the affidavits tend chiefly
to the sending of coflins in.)
Mr. Just, raiic. If \:>u intend to make any
une of those attidavits, they must be produce*!
and read.
31 r. Richard Tulthorpc sworn.
Att. Gen, Did you know Edward Arne?
Fidth^rpe. I did, I was a prisoner then my-
self, he was brought in the latter end of Augu^^t^
and I remember him a prisoner In* fore he was
confined ia the strong room i i being ia the
Y
StS]
3 GEORGE IL
cellar, one Barnes and two or three other aer-
▼anta of the wardena took bim by TioleDce and
carried Kim there.
Att Gen, Had you been in his company ,
and bad conTersation v^ith bim ?
FuUhorpe. 1 had several times*
Ait. Gen. Was he disorderly ?
Fulthorpe. He might be a little in liquor,
but he did nothing to offend any one, and gare
DO disturbance to the company. He was car-
rieil by Barnes into the strong room.
Alt. Gen. What sort of a place is the strong
room?
Fulthorpe. It is a place like a dungeon, with
A hole on the side big enough to put in a full
pot of beer.
AU, Gen. How big is the room P
Fulthorpe. The room is about half the big-
ness of the Court where the counsel sit, and
atands near the duncrbill, and the sewer runs
under it. I saw it opened.
Att. Gen. What was over the common
ptwer?
Fulthorpe, There were boardslaid loose over.
Att, Gen. What was between the common
•ewef and the boarda P
FuUharpe. Nothing. The walls were green.
It was not tiled in, and had scarce been built
above a week, and was as wet as any thing
could be.
Att. Gen. Who put Ame into the strong
toomP
Fulthorpe. Barnes and some others, then
Crisoners, who acted under the warden, took
im out of the cellar, put him in there, and
locked him up.
Att. Gen. Did you see Mr. Hnggins during
the time Ame was there confined P
Fulthorpe. I saw Mr. Huggins twice there.
I saw him at the strong room ; he went along
with Gybboo and Hopkins, and Mr. Huggins
laid bis hand upon the door, and looked in, the
door being open.
Alt. Gen. How long was he there P
Fulthorpe. A minute or two.
Att, Gen. Who was there besides P
Fulthorpe. Several belonging to the Fleet.
I believe Barnes was there.
Ati. Gen. How long before the death of
Anie ?'--'FuUhorpe, About a month.
Att. Gen, What condition was Ame in at
the time he was put in there P
Fulthorpe. When he was put in there, he
was a little out of the way when fuddled, but
when sober as well aa any man ; when 1 came
to the door, there used to be a smell enough to
atrikc one down.
Att, Gen. How long was Ame in the strong
room, before you saw him there?
Fulthorpe. I went the next morning, and at
aeverai other times.
Att, Gen, How long was Arne there P
Fulthorpe, About six weeks.
Att. Gen, What condition waa he in when
Uuggins looked upon him P
Fmitkorpe, Ha wta ?«ry ill when Hnggint
laakad upon jam/
Trial of John HugginSf
Att. Gen. What do yoa think waa tb
aion of bb death P
Fulthorpe. The confinement and the
ness of the room gave him his death.
Att. Gen. Had Mr. Huggina spoke
Ame taken out?
Fulthorpe. He had not, for the dc
shut, Mr. Huggins being then present.
Att. Gen. How came you to be then
Fulthorpe. I wanted to speak to Mr
gins about business, for the payment of
drawn upon Huggins by one Lewis.
Att. Gen. How came Arae to cut hia
pieces, and creep into the feathers P
. Fulthorpe. It was occasioned by his (
raent; there was no fire there, and I
the confinement was the occasion of hit
Huggins. How oflen did you know
out P — JWthorpe. Two or three times.
Huggim, How long were you a p
aflerP
Fulthorpe. I was discharged by the
Grace.
Att. Gen. How came you to be pre
the time Mr. Hoggins looked into the
room?
Fulthorpe. I waited for an opportt
speaking to him about a note.
Mr. Tudor Smith sworn.
Sol. Gen. Did you know Edward An
Smith. 1 knew Mr. Arne very well, a
he was in the Fleet prison. I remem
time of his coming into the Fleet prii
was with him in the sponging- house, ai
he was carried into the Fleet prison.
Sol. Gen. Where did he lie P
Smith. In the room of one Robert Shi
continued there about a fortnight oi
weeks ; but upon some quarrel was turn
Sot. Gen. When Arae came out of th<
was not his bed turned out with him ?
Smith. It was; upon which, he thei
the common -hall for some time.
Sol. Gen. Did you see Arne carried
strong room ?
Smith, I was in the cellar, when he \i
ried to the strong room ; Barnes toe
away.
Sol. Gen. What was Barnes?
Smith, I apprehended him to be Mr
gius's servant.
Sol. Gen. What did you see done by I
Smith. I did sae Barnes come, and tal
by the collar, and he said. He must g<
with him. Arae said, Where? Barnes
No matter where, you must go along wi
and the next monung I saw Arae in the
room.
Sol. Gen. What state of health wa
when carried there ?
Smith. He was in an ill state of healt
Sol. Gen. What sort of a room was i
Smith, It was newly built, very dam|
nauseous place. I knowing him befe
under more than common concern, #0
Araa how ha did? And he said Ban
^ the Murder nf Eihmrd Arm, A. D. 1729.
Smith. 1 received ao aoBwer tVoiu Mr.
uknl liim if lie had a bed ?
H«aiilbebMt nobrdi but the nut day a bed
■t> imii|;b( to hil».
HtL ((«•. Ilov lone did he lie there?
Smui. A moDtb or six weeks ; I tiwied him
U. Cm. Wi8 lli«re any lirp-|ikce, any
0»ik, ar Aoy thing oeceuary tu ease na-
iiiA There vnu no (ire-place, no candle,
Mt^Btctwjry tooseimtureiu, and hewui
kriado all thai nature requiTPd (here; and
■^itiaie, when I carried drink, nieai, ur
A*kiB, 1 hare been forced to hold my nnae.
U. Gn. What place was tliere tu let iu the
SjwA. Tbere was a place oTer the door witli
• loot in letigtb, anil another bole
' 1 a fool and bull*.
Dill yoM give any rolica lo Mr.
' : L.i- condition litis muii was in ?
^hh. iJnriiigbern B pritoiicr some lime, 1
k ^ftii4 Ivr tliB benefit of the rules, and he re-
I tBifi lat IV>r the iiberly of the rules, and
I IhffaiH and Oybbnn insisted upon 10 guineus
I ■■(; aoil I » rute foar letters of the usage I
I Molted, ItAfing palil seTeral snuia of money ;
I <4di 1 sent to Mr. Hui;gias by Robin tlie
[ mr, and did in one of them, of the Ath of
Qato, mrniioD Mr, Aroe's coofinemeui.
It. Bamn Carter. To what uurpose wa
tekUrrf
imii. II partly related to my own buslnesi
■■dl mtniiooed that tbe slri>ng loetu kus
'"' ::■ < fit for ii Christian to be in, and Mi
,1 n very miserable CO ndiiian ; an
" *iicb a condilion, 1 ^lehima
;:.. ^.'Mii. beiDfc in ■ mannVr nakeil tor
ku •< ii.icrin^, lie bad ripped open hia bed,
<UkJe<,l mio the feathers.
Xr Baran Carter, Did you lake any
••ttt leilrr »l bis lying in ilie fealliera ?
' ~L I had wrote in the letter almul neeine
Salotbe fcutheri, aiid direclnl ilie letter to
Ib.Higjpaa, al liU houiw in Bl. Martin Vlane,
"i ■« ii by Robin the porter. I spoke to
M Jwtice Page. Thiit waa not material.
Barim Carlrr, Did you ever aee Mr
U in (be gaol f
L 1 BCter did, but wtlelied an oppor
W«tm*iatC him.
** ) Carter. What condition wa'
• M n muwrnble (ceue ; and 1 taki
llic cause of hii death ; and that
1*1 by lieiii^ in »iuch a condiiion.
ku. I deaire he mav be asked,
fnir I liAiJ oome into the Fleet prisuo,
N ham seen nie ?
I brlii*e 1 <ihuu!d.
-itt. D'dyiiietetaee
^ I ant Ur. Hugicins two or three
W, u ibe lime ibe oruilionoii
Hiumt. 1 rfetire lie may be aakei), my
M, tf ba itKnni My auiwct frtm me tu the
m
nessf-.5ni,(S, It did.
Jtoberl Satitlclair, the porter, iwi
Atl.Gcn. It that ibeman, Robin?
Smith. It la the man I scut.
All. Ocii. Did you carry any lettcn
Mr.Smilli?
Haintclair.
brnugbt aiiswi
reason of the dislnnce of the time, cannot re-
lueniber the delirery of the letters, but govs
tbe answers to Mr. Sniiih.
Att. Gen. Do you remember about what
Sainlclair. I cannot uy about what time.
Att. Gen. Did you carry any letters from
Mr. Smith toMr. HagiipnBr
Saintciair. I carried aereral letlera lo Mr.
H ufgiiis from Mr. Smith, and always return-
ed an answer to whom I dchrered them.
lluggim. My lord. I desire he mav be ask-
ed, if he ever delivered a letter from Air. Smith
turner
Saiittelair. I cannot iay I
Ho|{g'ins at his own house.
T^tmat Paine swoi
Alt. Gen. Did you know Edward Arne?
Faille. I did, and remember hi* being put
in the Pleei prison.
Att. Gtn. What itate of health was lie iu
when lie esnit there?
I'aittt. He was in a good state of health. I
was in company with him and raplaiu Bat«-
niao, who was al cards, and Ame was at play,
and did not seem to he lunatic ; unil ooe James
Bamea came imo the rnom whdat 1 wai in
I'umpauy drinking with tliem, and Arne iras
rloiii|c nolhinir disorderly, and Barnes forced
liim into the strong room, and I was then hv.
Att. Gen. WliowasBai'uesf
Painr. Barnes was a prisoner, and was made
m watchman by Gybbon, »ho gate him tbe
liberty of the (rale.
Att. G(R. What was his husineil?
Paine. He was a watchmBD.
All Gen. Whose servant (lid you look upon
taiui in bfi>
Puint. 1 looked upon him la be a servant of
Mr. UyhtHin'n.
All. Gen. Did you ever see Mr. Huggins
there ?
Paine. I never saw Mr. Hoi;gius there, Itut
when llie priiihoouiariea were Uiere,
Alt. Gen. What sort of a place was it befora
it wan niude s-i ?
Puine. It wna ■ stable where tlie cocki
and heub roosted.
All. GcR. Did you see it after it waa eow
verted into a strong room, belbre Mr, Arne
387]
8 6E0BG£ U.
Paine. I cannot s&y : bot there wai tn ill
smell came both from the necessary-hooae
and from the dunghill.
Att. Gen. What condition was Arne in,
ader lie was put in by Barnes ?
Paine. Arne ^w outrageous, and tore his
clothes and beddmgf.
Au. Gen. What condition of health was
Arne in ?
Paine. I never talked to him but through
the hole in the wall.
Au. Gen. How was he before he died 7
Paine. J was discharged before he died.
Att, Gen. What kind of alteration was there
inhisToiceP
Paine. He was a little hoarser, abd I could
not see him, but only as I talked to him
through the hole.
* Att. Gen, Was it a fit place to confine a
prisoner in ?
Paine. It was not a fit place to confine pri-
soners in without danger of their lives.
Huggint. WaK there a court of Inspectors
tw governors of the Fleet ?
Paine. There was such.
Huggint. Did they not ballot once a month ?
Paine, We once balloted for steward and in*
spector.
Huggint. Did not the court of inspectors
place Arne in the strong room f
Paine. Tlie inspectors did not so much as
▼isit the strongroom.
Huggint. if any complaint had been made,
was not tbe power vested in the court of in*
specters to redress ?
Mr. Just. Page. Mr. Huggins, that is not a
proper question.
Huggint. My lord, I desire he may be asked
then iifiw long it was before Mr. Arne died
that he left the prison ?
Paine. 1 was dischai^ed in September, about
the 0th.
Huggint. The 8th of September, my lord,
wlucb was about six weeks before Mr. Arne
died.
Mr. Just. Page. When was the strong room
built ? — Paine. lo Mr. Gybbon*s time.
Uug^ins, My lord, if BIr. Oybbon built
the strou^ room, there is reason to believe be
paid for it.
John Bouch sworn.
Att. Gen. Did you belong to the Fleet f
Bouch. I did, I was turnkey there.
Att. Gen. When was (he strong room built?
Bouvh. It was built in 1735, the latter end
of the suuimer, by the direction of Mr. Huggins.
Att. Gen. During the time that you be-
longed there, did not Mr. Huggins come fre-
quently ?
Bouch. He came now and then, not jejff
oflen.
Att. Gen. When was Arne put in the strong
room ? — Bouch^ He was put in about August,
Atlt. Getu Did you know htm before he was
earried there P
'Bweh. IknewhimTerywdliindnofvriair
any ill offered by him.
Trial of John Hugghif
Att.Gen. Whose order wis te pn
Bouch. He was put in by the orde
Gybbon and Mr. Huggins.
Att. Gen. Did he die in that place f
Bouch. He did.
Att. Gen. How long was he there?
Bouch. About a month or six weeks
Att. Gen. Did you see Mr. Huggi
during the time Arne was in the strou]
Bouch. I cannot say I did.
Att. Gen. Who was it orer-kx
building the strong room ?
Pouch. Mr. Huggins, wnen he can
lodge.
Att. Gen. Was he there when the
was a- raising?
Bouch. 1 cannot be certain, but I n
there was a direction of the Court <
mon Pleas for BIr. Huggins to ins
gaol, and that he came once a week i
order from the Court of Common Plet
Att. Gtn. What was the conditio
room?
Bouch. The room was newly built ai
Att. Gen, Did you carry any lett<
Huggins relating tu Mr. Arne ?
Bouch. 1 did carry a letter from a
Mr. Arne's, and he was so weak thei
could not speak.
Att. Gen. Where did you carry it 1
Bouch. From the Fleet prison.
Att, Gen, What was it about ?
Bouch. It was about getting Arne hi
a gentleman gave me the letter, audd*
to oring an answer as to Arue*s havir
berty of tbe rules ; and I went my
saw Mr. Hoggins, and gave him tli
he opened it, and said he would sen
swer by Mr. Hopkins.
Att. Gen. When was this ?
Bouch. It was in October, about a
fore Arne died.
Att, Gen. Where did Arne die ?
Bouch. He died in the strong roo
him two days before he died ; he wa:
if dead then, and very weak and ill.
Att. Gen, .What Kind of a place
strong room ?
Bouch. It was a very sickly place
of the common sewer running under 1
Att. Gen. What message did Mr.
send by Mr. Hopkins as to the letter '.
Bouch. Mr. Huggins sent word b
Hopkins, that he would inform Mi
friend what was to be done.
Att. Gen. Who was it built tl
room?
Bouch. One Fry, a bricklayer, to<
tions from Mr. ituggins, at Mr. h
own house, and I was present when
there.
Att. Gen. Who paid for the buildh
Bouch, { believe Mr. Huggins, for
a master bricklayer, and I saw him th
business afler the building was finishe
Att, Gen, How came you to be the
Bouch, I went there Q&eD to geli
Mr. Huggiw.
3»]
fir the Murder of Edward Ame.
A.D. 17S9.
[5S0
Mr.
Alt. Gen, When were yon turnkey ?
houch, I was not turnkey till after
Aroe's deatb.
Att. Gem, Did yon ice him in the strong
fiiMcA. I saw him in the strong room twenty
tioct, fur I Has then endcafouring to get to be
tnitej.
itt Gen. Whom had ^nu the pkice from f
Hodk. From Mr.Hnggins ; and during the
tef vas endeavouring for it, I saw Mr. Ame
■tteMroogroom.
James Tucker vwom.
Atl. Gem. Do yon know the place (hat is
oiled the ttmng room in the FJeet prison ?
l\uker. 1 do, and' was employed by the
WeUiyer ind carpenter to make the iron-
Att. Gem* Whom did you make out your
"to?
Tkeker, I made it out to Mr. HugginSi as
Att. Gen, Did you ever speak to any body
about his relcascnierrt P
Le Vointz. Whilst he was in this place, I
met with Mr. Oopkins, and spoke to him to ac-
quaint Mr. Huggins, that it was im{>ossible but
that Arne must perish, if continued in that
iilace ; and if he did not speak to Mr. Huggins^
[ would send to him myself; to which Hop-
kins replied, he would ; aud afterwards 1 mat
with him, and asked him, whether lie bad
spoke f lie told me he had spoke to Mr. Hug-
gins, who said it was no busiuess of his.
Mr. Just. Fage. That cannot be given ib
evidenire, for it is only hearsay.
Le FoiutM. [Stuniiing up again.] I aaw
Mr. Iluggius upon the Bare, with one Levins,
a QnakiTf then a prisoner in the bouse, and
Mr. Gybbfiii, during the time Arne was in the
stmn*; room.
Alt. Gen. Who paid you ?
Tucker. 1 made the bill out in Mr. Hug-
|infs name, and was paid by Pindar, and a re*
BSft WIS given in full of that bill.
Mra. Eliz. Le Fointg sworn.
Jt't. Gen. Did you know Edward Arne ?
hPointt. I did.
Ait. Gen. Do you remember him a prisoner
is ike Fleet, and bis confinement in the strong
1/ PointM, I do ; be had been confined two
vrihree fla3'S befure 1 went to him ; the first
tm I saw him sittin«r upon a bench, and the
Bvutme in Win feather-bed, and lie was cover-
AirhKvin, and hi:i l>ed lay on the floor.
.-'/:. (J in. What condition of health was
kio*
LtPmntz. I nevpr found him any way dis- ^as after the tire happened in liell-Savage
kiDp^reiK only disordered by the'col(f and
dut.pD<rss of ihe place.
Alt. Gin. Was not his voice altered ?
le Pol fit M, He had a shivering hoarseness
SpOD liiui.
Att. Oen. How long did he continue there ?
le Point:. He continued there seven weeks,
* ibfereaboats.
Alt, Gen. What condition wns the place in?
Le PointM. It was building in July, and J
Rmember the finishing of it some time in Au-
Alt. Gen. W^hen was Mr. Arne put in ?
le Points. He was put in as soon as it was
fiii»faed.
Att. Ccn. Do you believe that was the oc-
caioQ of bis death ?
If Puir.tz. It was impossible to be other-
^ ; fur the huililing was so very green, that
S«u might pull the moriar from the bricks
*A Tour fingers, and it was impossible any
hiv eould be continued therein for seven weeks
iQQut being killed by the dauipness of the
fhoe ; and I verily believe that confiuemrnt
*■ the occMioa of Ame's death.
Serj. Cheshire. Which way did he come
upon the Bare ?
Le Pointz. I cannot tell ; there were then
but two ways, one by the strong room, and ikm
other through the house.
Serj. Cheshire. Whereabouts is the strong
room?
Le Pointz. The strong room was built near
the Bare, und joins to the end of the house ;
and I saw them walkinjg; together ; aud that
he could not well come in or out niiiiout com*
ing near the stronpf room.
8erj. Cheshire. What did you think was the
occasion of his coming there ?
Le Pointz. To take a survey of the walls,
which were then finished, for that I saw him
look up at them.
Serj. Cht shire. Did you know Mr. Iluggins?
Lc Pointz. J knew him very well.
Serj. Cheshire. When wasjhisp
Le Pointz. I lake it tu Ik* some time in Oc-
tober, about fourteen days before Arne died : it
yard.
Thomas Levinz was called, and being m
Quaker,* refused to take an oath, and there-
fore cuuld not be admitted an evidence.
Jluiigins. It is a <rreat w hilc ai(o since this
matter happened ; there is iki notice taken by
the course of the evidence how this matter has
gone on, and therefore it was \>ry difficult to
answer particularly thereto ; this 1 do sideinu-
ly affirm, that during the t.ine Arne was there,
1 never lieard of his name, that he died, or was
in the strong room, till that I was iu the Fleet
to be examined : that I never was seen in tlie
Fleet prison while Arne was in the strong
room ; and that no one of the kin^^'s witnesses
has said, that I used any hard words aliout
* *Mn the case of Bambridj^e (postca) the
appellant's counsel called u (Quaker, and in-
sisted that this is a ci\ il suit, in w hich he mig[ht
be a witness. But the chief justice said, it
was to this purpr>se a eiiininal iirucieding, and
therefore he couid not be a witness. Strange'i
Reports, vol. 2, p. 85C.''— IWicr Edition*
331]
S GEORGE U.
Trial of John Iluggint,
[SSi
Mr. Arne.^ There was a suggestion of mj get-
iing Arne into Bethlehem, it was oo part of my
office as warden of the Fleet, bat 1 might by a
friendly office use my interest with Mr. Tay-
lor ; and that would shew me more a humane
man, than one guilty of cruelty.
That some of the prisoners^ who were wit-
nesses, were discharged the prison the 7th of
September, so it was not likely that they should
be able to swear as to Arne's death, who did
not die till October.
As to Gybbon being deputy, the first evi-
dence to be produced will oe the act for insol-
Tent debtors m 1725, to prove that Gybbon car-
ried iu a list pursuant to that act ; and deliver-
cm! it as gaoler, and swore to it ; and I must de-
sire, that Mr. Tanner may read the clause in
that act of parliament, where gaolers are di-
rected to make out a list of prisoners.
Att, Gen, If you would prove Mr. Gybbon
warden, you must prove what consideration lie
gave, and what stile he bore.
Mr. Just Page. Did the commissioners in
that act take notice who was deputy-warden or
not ? Let it be deputy, or how it would, they
took no notice of that. 1 1 would be no evidence
for the king.
Huggitu. It will prove that Gybbon aeted.
Mr. Just. Page. We shall see that when the
act of pariiament is read. I allow Gybbon did
act in tact.
Att. Gen, If he has a mind to prove Mr.
Gybbon deputy, he must prove it by his depu-
tation.
Serj. Cheshire. It is too early to offer this
before the deuutation lies before us ; therefore
I submit it, it it is not too soon to offer this in
evidence.
Mr. Just. Page. I cannot direct the prisoner
how he should proceed ; whether this may be
of advantage to him I cannot find. If he be
charged from a particular fact that did arise
by Gybbon, why should not Huggins, by the
same rule of reason, justify himself by any
other act done by Gybbon ?
Vide Act.] Then the clause in the Act of In-
solvency iu the year 1725, was ordered to be
read.
Mr. Just Page. I do not see, upon reading
of the act, it affects any thing that has been
said. 1 take it that the officer acts, and makes
returns, and the law does not say whether it is
the warden or the deputy < warden. Mr. Hug-
gins, 1 dare to say you yourself will own it;
and the use that you would make of it is to
shew, thit he acted as warden.
Huggins. FuUhorpe was discharged the 7th
of September. 1 desire Mr. Tanner may pro-
duce the list, and that it may be read to skew
that
Mr. Just Page. If Fulthorpe's evidence was
laid aside, yet there are witnesses enough to
prove, that they saw vou there : however, I
most take notice of wnat Fulthorpe said ; he
aid, that Arne was a peaceable man, and then
gtre a defcription of the room i ind nid» that
I
the floor was covered with a few boards ; and
that he saw the prisoner twice in the Fleet, and
that he was there at one time, and k)oked in at
the door, and then the door was shut, and ht
went away. This defence seems but trifiing.
Huggins. I intended it as to the credit of the
witness.
Mr. Just. Page. The man has sworn ho-
nestly, and if it was struck out of the evidenes
it would not signify ; and I must a little asskt
vou, as no counsel is allowed but in cases of
high treason. You were going to shew the act
of the deputy, without shewing what authority
was given to the deputy. If yon have any in-
strument or agreement by which yoa consti-
tuted Gybbon deputy, you must produce it
Huggins, My lord, 1 cannot produce it, be-
cause It is in the hands of the widow GyblMNi,
or some other person ; and we are at this time
in eouity.
Mr. Just. Page, Affairs of this nature have
always been done by indenture — as the aherifii
of London to their under-sherifi*— and then yos
must have a counterpart.
Huggins. My ku'd, I never made any Meh
indenture ; I desire Mr. Tanner may he asked*
who appeared as warden upon the Inaolvcnl
ActP
Tanner, Mr. Gybbon, my lord.
Mr. Just. Page, Do you believe he waa de-
puty or not f
Tanner, I looked upon Gybbon as a proper
officer.
Mr. Just. Page. Who do you think wu war-
den?
Tanner. I cannot say who was warden.
Mr. Just. Page. I thought you would Ml
have equivocated. You are a good officer, but
I shall never eutmine you as a witness.
John Jeffreys^ Keeper of the Compter, swora.
Huggins. Mr. Jeffreys, pray acquaint the
Court what agreement was niacie between Mr.
Gybbon and me.
Jeffreys. There was a writinsf made, and I
was a witness to it, but did not know what it
was.
Mr. Just. Page. Mr. Huggins, the questions
that you ask, you must firbt explain to the
Court.
Huggins. 1 desire Mr. Jeffreys may be ask-
ed, if he was present at the agreement ?
Jeffreys. I was present.
Huggins. Was there any writing signed f
Mr. Just. Page. You must take care to pro-
duce the writings if you examine to them.
Huegins, 1 have sent a mau for the reoeipl
of 1,000/.
Mr. Just Page. 1 cannot comply for thi
same title made under your grant to lie givca
in evidence for the grantor : it was a lilie
from you, and how you will do to prove tbif
by word of mouth, I cannot see how it can be
done ; for when a treaty comes into artichp
and writing, the treaty by word of mouth Nil
an end witnout the wntieg ia prodiiecd.
WJ
Jiif the Murder of Edward Arne.
A. D. 1729.
ISSi
Huggiiu, I was going to explain myself,
iid wu o?er-raled.
Mr. JnsL Page. Whenonce articles are come
10 be a conveyance, except it is to explain that
csBfcyance, and except it is to discover some
firtnd even in the conveyance when given, it
CHMl be spoke to.
f]Hr. Baron Carter being gone out of Court,
■wicmned, and Mr. Justice Page took no-
iv lihmi of what had passed in his absence.]
Mr. Hoggins's aim is to shew, that Mr.
Gjttoo was sole, entire, acting warden ; and
llslio act uf Gybbon's should affect him ; and
Mibe late Act of I nsolvency read, and thought
1i have read the schedule, but that could not be
md. Mr. Huggins asked who brought in that
KUdule, and -asked Mr. Tanner, whether Mr.
G)kbon brought in that return as deputy or
M; who said that he did not know who was
Mnlen, but that Gybbon was the proper offi-
cw: now Huggins carrying this matter fur-
te, wouki have Gybbon appear to be his de-
|Mv, ind has now called Jeffreys to prove that
dipiitBtioD. Jeffreys says, that it was in
viiiBg, and 1 could not allow Jeffreys to c;ive
■ criifence what was in writing. Huggins
■U is answer, that there was no counterpart,
■ilhat Gybbon's widow had such appuint-
wmL I submit it if it was not his act and deed,
if Vr. Gybbon allowed uf it
Htegins. My lord, it is only a receipt.
J^ryi. My lord, it was a receipt for 1,000/.
lid no agreement.
fiiffMs. Mr. Gybbon agreed T\ith me for
Wi. per annum ; and liking thobar^a>.n made
«4!faHt of 1,000/. and this was all tlie writing
krtnefaus, and in it declared that ho was to pay
^Xs'. ptr ann., on condition of haviug the rents
•f ilie house anil sh«.;)s in Westminster- ball,
iirf rpqiiire<l a deposit of 1,000/. and a parole of
thneynrs may amount to a leasp or demise.
Mr. Barou Carter, .4t kix months' end Gyb-
ks desired to haf e it renewed, and came to
the cub«^|ueut agreement for 900/. |)er ann.
Jv three years. If the Court could see that
i^^reement, whether it do not amount to a lease,
LHcre may be a demise in it, but how far the
Coon will lay their commands to produce it,
seihall not now di-ternii':o ; it would bo very
kird to have it out of hLs power, and not to ad-
Bit him to give evidence.
Att, Gen. The law recjuires the best evidence
&u \% to he given ; supposinr; that (hat writiiiir
*H lost, he might he admitted to cfive evi-
4iBce that it wai* lost. Jf it was in ilie hands of
Hy officer of the crown, and they wantcd'lo be
tviitted to give evidence as to the contents,
■Wlber upon giving evidence, that the thinj;;
VHin bciiifiT, and in the hands of a third per-
^ ihey should give parole evidence as to
Irt.
Mr. Just. Page. Hiippose a man receive mo-
^ by false tokens, hnt by some accident it is
fHiato other hands, and he uses all the care
lid art be can to get it, and pmyes that he can-
at it, it would be hard to couvict a
man, if he cannot come at the writing. It is
the same in cases of life and death, by forgery
and false deeds.
Mr. Baron Carter. I agree your notion is
right in cases of civil actions, for if he can't
give such evidence as the law gives against it,
be has a remedy ateqiuty ; but in this case,
where a man stands indicted for murder, where
can he have his remedy ? I am sure we sbouhl
be guilty of murder, if we insisted on it ; Hug-
gins ought to give an account that he can't
come at such agreement.
Uuggim, Mr. Jeffreys says, that he applied
to Mrs. Gibbon, and Mrs. Gybbon told him,
that It was m the hands of one Wilson, her clerk
in court, and he could not tell whose hands it
was in.
Jeffreys. I have a copy of that writing, which
has been in my hands long before any contest
happened to Mr. Hugg[ins, for it was written al
the same time the receipt was given.
Mr. Just. Page. Is it a true copy ?
Jeffreys. I believe it to be a true copy, and
that there has been no alteration made in it.
The Copy of the Writing read And itap*
peared to be witnessed by Mr. Jeffreys, the
26th of June, 1723.
Huggint. Have yon had any conversation
with Mrs. Gvbbon lately ?
Jeffreys. Mrs. Gybtion came to me about
fourteen days ago,
Huggins. Was there any talk of any ioch
thing as a lease or articles of agreement P
Jeffreys. There was no such u ord mentioned
as a'leasc or articles of agreement.
Huggins. Do you know of any articles of
agreement ?
Jeffreys. I don't believe there were any, for I
was very conversant with Mr. Gybbon, but
never heard him ask after them.
Huggins. How long did Gybbon continue in
that otiice ? — J^ff'tys, Three years.
Alt. Gen. U hat do you mean by that -of-
fice ; did he continue to act for those three
years ?
Jrffreys. He did, and one year longer, which
I applied to Mr. HuGC^ins for him to do.
Mr. Just. Page. You were present at theset-
tlin^Lj^ of the account between Mr. Huggins and
present
Mr. Hi
Mr. (ivhbon: at the bottom of the account
there ure some items that have no sums to
them : pray how did that happen ?
Jrlfreys. My lord, it was not settled.
Mr. Just. Page. Was any thing mentioned,
who was to he at the charge of repairs during
the four years .'
JifJ'rtK's. Mr Husfcfins made a memoranduiQ
at the bottom ot the paper.
Huggins. 1 1 M as settled at the end of four
years.
Mr. Just. Pu^:e. The repairs of the prison
were left a blank.
Uusifiinf:. 1 answer to that, my loril, that it
was settled at t!ie end of four years : Mr. Jef-
freys wuN then present. Your lordkhip scems
to take it for a Icu^e of three years.
SS53 SGEOBGSn.
Mr. Just. Fuge. It is neitbtir the one nor the
other, either lease or agreement.
Huggint. My lord, Jeffreys ^aid there was
BO ott^ agreement.
George WeUanduwmn*
Huggins, When did Gjbbon enter upon hb
Wellend, Mr. Gybbon entered at Christmas,
1733^ and I was concerned for Mr. Gybbon
before, and by his direction acted, and he al-
ways paid me my fees, and I never reeeifed
any thing from Mr. Hoggins.
Bugfins. Who bore allexpences relatiiig to
the en^T^Wellaiid. Mr. Gybbon.
mggins. How lonc^ did he act f
Wmand. Mr. Gybbon was in fonr years and
a half.
Huggins. What do yon know abont Ame ?
WeJkind. I was there then, "and Ame was
«emmitted about the middle of May, and at the
^ latter end of Senlember, Hopkins was sent into
the country to Shropshire, and I acted till Oc-
tober, and I was requested by Mr. Gybbon to
go to the Company of Upholders relating to
Mr. Ame. He was brought in May, and put
at the Vine, and made liis escape, and then
grew disordered in his senses. Some of the
prisoners came and brought a bed of Mr. How-
ard's, and 1 saw bim stark naked ; and it being
desired, he was piH in -ttre strong room at the
mraeot of the pritKiners.
Muggins, nil at was done open yonr appli-
cation to the Companr of Upholders?
Welland. They took care of him.
The witness had a book in his hand, which
be called a check- book.
Huggins. Pray give an account, whether I
gave any direction relating to the prisoners ?
Welland. I never saw Mr. Huggins there
but twice, and that was when the Prothonota-
riea were there.
Huggins. When had you that book deliTered
to you?
Welland. Two days before Mr. Fitch died ;
the book was brought into my hands, which I
iMntinued to act in till Mr. Bigrave came in.
Huggins. By the writing in that book, 1 can
Eove Hopkins out of town. When was Hop-
ns out of town?
Mr. Just. Page. I will call Fulthorpe to
dear up this matter.
Fulthorpe was called again.
BIr. Just. Page. When was it you saw Mr.
Hoggins at the Fleet prison ?
Fulthorpe. It was some time before I was
discharged. It was about a month bef^^re Mr.
Arne died, and I likewise saw Air. Farrington
at the same time. Mr. Hopkins was there,
and then came in with Huggins.
Mr. Just Page. How oiWu did you see Mr.
Huifiritis there P
Fulthorpe. I saw him twice at the prison,
hut ones at the strong room.
Mr. JuBL Po^e. What time of the day was
It jrott uw Mr. uuggins th«t ?
Trial of John
) Fulthorpe. It was between elereo ant
and there were there Mr. Huggms, M
kins, and Barnes ; and I saw Mr. 1
walkmg upon the Bare, when Lev
duaker was there, and I believe Mr.
with them.
Thomas Farrington was again call
Mr. Juat Page. Who was at the
room when you saw Huggins there?
JVirrtR^^ofi. There were Mr. Huggii
Jdns, and Barnes there.
Huggins. I beg leave to observe, t
thorpe was discharged on the 7tb of $e|
and whether I may not be allowed to i
Welland again, to know if Mr. Gy bboi
give all orders, and to prove that the t
usage was not to have the coroner bit a
dies in mesne process?
_ Mr. Just. Page. You may ask wb
tions you think proper, for I will stay
to>morrow morning, to give you an c
nity of going on wiSiyour defence in yi
way.
Huggins. I desire then, my lord, he
aaketl, whether Gybbon did not give al
relating to the prisoners ? — Welland. I
Huggins. Whether the coroner wa
in to sit upon any bodies, but in executic
Welland. We never had the coroi
upon execution.
Huggins. Whose servant was Barne
Welland. Mr. Gybbon's servant,
Gybbon pay him money.
Huggins, Did you ever see roe and
together?
Welland. I don't believe I ever did.
Huggins. At whose request was Aro
the strong room ?
Welland. At the request of the prisni
Mr. Just. Page. Name at whose rec
was put in. — Welland. I can't tell.
Mr. Just. Page. How came you to k
Welland. I was in the lodge.
Mr. Just. Page. Were you then pros-
Welland. I was.
Mr. Just. Page. Can't you name
tbem ?
Welland. No, none of tbem are n<»w i
Mr. Just. Page. Was not Farringtoc
prisoner? — Welland. He was.
Mr. Just. Page. How long is it sic
were concerned in the prison ?
Welland. In Michaelmas 1722, and
nothing of it before.
Mr. Just. Page. Was there not a be
the warden for day-rules ? — Welland.
Mr. Just. Page, To whom was the
accounted for?
Welland. It was accounted for to
The Clerk of the Papers always rtca'w
money, and I have been there several t
the jMiyment of money.
Mr. Lee. Was it not usual to give mo
the liberty of the rules ?
Welland. Mr. Gybbon made it a cui
take two guineas m er ary lOOl. for the
S7]
Jbr the Murder of Edward Arne.
A. D. 17S9.
[SSS
Mr. Im. Do tov know of any mooey paid
to Mr. Hoj^giiis r
WcUand. I doo't know any was.
Mr. Ite. Were yon there when the strong'
1MB wBs built?
Wftiand. I was,- and Ame was the first per-
too that was pat in.
Mr. Le€. I ask you, whether it was all
%tti^?^WeUmd. i belieTe it was floored.
■r.Lar. Was it not an arclied Tanlt?
Wdknd. It was a kind of a vault, and there
fMahncb in it.
Mr. Lee. Where was it situated ?
Wdkmd, It wtt about three yards from the
Miff.
■r. Lte. Had Ame a bed there ?
Wdiand, He had abeil in it.
Mr. Lee. Was he not in a naked condition ?
Wtlkmd, He was in a naked condition, which
pscccded from his madness.
Mr. £er. Was (hat a place fit for a man in
hiicoodiiioD to be kept ini* — Welland. It was.
Mr. Lte, Is there any phce so had in the
WdUnd. There was a worse phice where I
kv, calledjniius Cesar's ward.
Mr. Lit. How could it be worse T
Wdlmnd. Because many people lay in it.
Mr. Lee. Whether writs were not directed
», or Locum Tenenti?
WtUand. They were.
Ik. Lee. Whom were the writs returned by ?
Wdknd. By Mr. Hugg^ns.
John Brovniii^ sworn.
ftflpss. How lon|^ ha?e you known the
fkn prison ?
Brnnitig. I hare been a prisoner there
^•vrtwenty years.
Bn^ginB. When any body died in the Fleet,
osept in ezucution, was there any coroner's
^notP
Bnuning. Never, but when in execution,
Mr. Dickson, who was Clerk of the Papers be-
fcre Hui^gins came, told me so.
Hug^in$. My lord, the prison beings very
fall, it being against the time of an insolvency,
ike prisoners grew very riotous, and JVfr.
Gybbon could not come in, so that there was
00 place but the strong room to put Arne in.
Mr. Samuel Green sworn.
Huggins. What was the state of the prison,
ao'I tlie condition of it in 1725 P
Green. 1 was had in, in February 1724, and
tame out the latter end of June 1725, and J
applied to Mr. Gibbon in February 17 34 for
a ruoffi : 31 r. Gybbon said he could not help
•e to one ; then I applied to the prisoners,
and gave a guinea and a half to them for one.
UuLgint. Was there a court of inspectors T
Orctn. Yes, and I was one of them, and
fvery prisoner that came in paid 5s. in order
U apply to the Court of Common Pleas to re-
(iiUitf the fees.
Htigght. You did pbice people in rooms.
Did yuu punish any prisoners ?
VOU XVJI.
Green. I can*t say we did.
huggint. Did the warden dare to come in ?
Green. He did not.
Mr. Just. Fage. Could the prisoners set open
the gales ?
Green. They could not set open the gates,
liecsuse there was a turnkey.
Huggins. Did Mr. Gybbon offer to come in f
Green, He did.
Mr. William Howard sworo.
Huggiru. Did you know £dward Ame ?
Hoxard. Mr. Arne came in about thre*
weeks before I went out, aad he was in the
same room where I was, and wanting sonse
goods, Arne offered me much more than I
thought they were worth ; for which reason I
did not apprehend him to be in his right under*
stondinsr!
Htfggint. Did you desire him to bring some
friend ?
Howard. I think I might desir« him ta
bring some friend.
Huggins. How much might be offer ?
Hovttrd, He offered me nine ^iueas, but I
took three, when I sold them to his friends.
Mr. Daniel Woodcock sworn.
Huggins. What do yon know of Edward
Ame!*
Woodcock. He came into the Fleet prison in
1725, and I was a prisoner a year and a half
before that, in July 1733, and continued thera
till September 1725: and 1 remember Arne's
being there some time before I was discharged.
Huggins. Were you there when he was
carried into the strong room ?
Woodcock. I was.
Huggins. Were you in the cellar when h€
was taken from thence ?
Woodcock. 1 were upon the stoirs when he
was carried into the strong room : He lay up
and down in the gaol in the common-hall and
cellar, till he was carried into the strong room,
and he was in it till I cnme away.
Huggins. Were you ever in the strong room P
Wiwdcock. I uas.
Huggins. Do you remember the building of
\i?^Woodcock. 1 do.
Huggins. How near to the laystall and dung-
hill is ii?
Woodcock. Within eight or ten yards.
Hhgginf. Arc there any lights ?
Woodcock. There is a place to put in drink at,
on the side of the door.
Huggins. What is the wall made of?
Woodcock, Lime and brick, as other walls
are.
Huggins. How long was it finbhed before
Ame was carried in P
Woodcock. 1 can't be certain.
Huggins. Did you see Arne let out at any
time?
Woodiock. I saw him let out, and be ran
about stark naked.
Huggins. Did you ever sec him naked be-
fore he Was put in Uierc ? — Woodcocks No-
Z
339} S GEORGE U.
Huggint, Did yoa e? er lee me at the prison f
Woodceck, Yes, when the prothonotaries
were there.
Ifuggint. Did yoa think you shooid hate
knowD, when 1 came there ?
Woodcock. It was as well known, as if the
kinfif had made a public entry.
Hugfim. Was it not for tbe prisoners' secu-
rity to have Anie pat there ?
noodcock. 1 thmk it was.
Hii^^mf. Who sold Ame his goods?
Woodcock. Captain Howard soil Ame bis
goods. ^
Uuggint, My lord, I mast ohsenre that the
court of inspectors punished prisoners. Did
not the inspectors punish their own prisoners ?
Woodcock. Yes, they pat them in the stocks.
Uuggint. Could Nr. Gybbon come into the
prison? — Woodcock. Uc could not.
Mr. Just. Page. Why then did yoa not all
go out of prison ?
Huggins. Did not the court of inspectors
dispose of rooms ?
Woodcock. I can't say.
Huggins. Did yoa see Barnes carry Ame to
tbe strong room.
Woodcock. 1 saw Ame as he was going to
the strong room with fiames ; and tnere was
a complaint made to the court of inspectors;
but not about this man, but about others.
Huggins. Was he a qaiet man ?
Woodcock. 1 saw no other, than his running
about like a madman.
Huggins. How many days was Arne in the
Strong room before yon were let out of prison ?
Woodcock. 1 was let eat about the 4tn or 5th
of tSeptember, there was an application made to
the Court of Common Pleas, and I made an
affidavit against Barnes.
Mr. Samuel Humphry t sworn.
Huggins, Were not you steward of the court
^f inspectors?
Humphrys. I Was steward for some consi-
derable time.
Huggins. When was the court first erected,
%j^ upon what occasion f
Mr. Baron Carter, Mr. Hugi^ins, how you
can apply this, I can't apprehend. Mr. Hnm-
phrys, what do you know of Ame or the
strong room f
Humphrys. Mr. Ame was a prisoner there,
when I was there first.
Mr. Baron Carter. Where was he when he
came first P
Humphrys. A person of his name came
there, whom I knew, and I went with him to
see Mr. Arne, and he lived intemperately.
This gentleman, after he had been there, had
supplied him with money, which he spent in
liquors ; and after some time he was much al-
tered in his way, and 1 saw him one day walk-
ing with his hat and wig off in the ram, and
took notice of it ; ami after that he proceeded
to furtlier extremities, and took up ahrick«bat,
Md throw ed it upon the Bart.
Trial ffJohn Huggins,
[840
Mr. Just Page. Do you belicfft be had any
sign against any body ?
Humphrys. I Mieve be had not,
Mr. Just. Page. Did he ever hit any body P
Humphrys. I do not know that be did, bat
we hod apprehensKMis, that ha might, alW
being in that condition ; he was an olyeet of
great eompassioa.
Huggins. What was bis bebaTioor?
Humphrys. His behaviour was soch, Ifall
he was not fit for a bed-fellow.
Huggins. Do yoa know any thing of Us
beiuff put into the strong room.
Humphrys. Before he was put into tbal
place 1 was discharged.
Huggins. Do you remember that yon nw
me there?
HiMRpAryi. I don't remember I saw yo«
there, except when the protbonotariei wera
there.
Huggins. Was that room built when ysn
were there ?
Humphrys. According to the best of mj
memory, that room was built while I wss
there.
Huggins. Was it not a stable before f
Hufnphrys. There was a stable, butldool
apprehend it was built on that spot.
Huggins, Were you present at any thnc^
when the prisoners desired to ha?e Arne prt
into the strong room ?
Humphrys. I do not know it ; it waa ate
that I came awa^.
Huggins. Did Gybbon dare to ooom klif
the prison without leave of the inspectors P
aumphryt. Mr. Gybbon was very anwiBhg
to come in, and I believe the reason was, be
could not come in with any safety. Mr. Gyb-
bon sent one day to some f;entlemen of the
master side to know, if he might ▼eoturs wilb
safetv to the Fleet prison, for that be bad a
mind to see the repairs ; upon which answer
was returned, that he might come in ; and Mr.
Gybbon came in, and 1 went about with him.
Huggins. 1 desire he may be askedt whe-
ther if any man wag injured, wonld tbey mit
have complained of it ?
Humphrys. I was there when Ame came in,
and discharged before he was put in the strong
room.
Mr. Thomas Dean swora.
Huggins. Did you sec me in the prison
daring the time Mr. Arne was there P
Dean. During the time I was there, which
was till the 12th or 14ih of September, yoa
were not there ; I was discharged on the 7tb«
but stayed a week after.
Huggins. Was it the opinion of the prisoncn
that Air. Ame should be coufined ?
Dean. It was.
Huggins. Who provided him victuals P
Dean. Oue Mr. I«oiiden found him in meal
and drink, and he was allowed for iL I havt
seen Mr. Louden in the room.
Huggins, Who kept the key of the
roomP
tlu Murdtr of Edward Ame.
A. D. 17».
isa
know wbo kept ilie kej.
you nee Arne there f
« aMo Ame >b ilie strong room.
- Wbeii was he carried there ?
_. . .I«HUC(immille<l to thGatroagroom
iiJalfiOrtti*li«einiiing of Auguat.
" - -- . Did yoj «ee me wiih Gvbhuii f
I 1
iml I
: Bare
1 Uie jiriuiD, lod was upon the
1*MHb liini.
ill. Gn. Did not Gjbbon'a Mrranl* come
An. Tb«Tdiil,BndG}-bl>niieBnietoeh*pel.
JK.Gm. WberealMXim n ibe diapel f
bu. Tite chapel i( within tbe walls of tbe
ituGm. ir Mr. Gybboo dared to venture
If INM Id chipel ; bow came lie not tu corae
fli|fMi. Pleace to »k, irbetbcr, if between
4*bMn often and lirelre 1 had bccu tbere, I
WMwt have been aeen ?
Dtm. Captain Patiiaon and otben went
liHllhcpnaDonitb Mr. Gjbbon.
bggbu. Tbe question is, II' I bad been
tMh whMker jou would not hare seen me t
Dka*. I tboubl.
fftfprf. Had nut Ame a broken coosli-
h. Band Carter. Mr. Hu^ins, I cannot
iWl yos lo gu into llial evidence; 1 don't
Jtovwhatadraiitage it will be to vou, you are
H^M pFTJodice youraeir; lur if be had a
Mag eonadtntion, lliere was less reaacn lu
Itttiai inlo Ibestrang room.
Mr. John Louden mom.
8^ftiai. My lord, be pleased lo uk Mr.
hmtm, whetbcr be bad tbe care and custody
Hr.Juat. Pagt. Answer that qiiealion.
IjBi/rn. I knew Mr. Arne befure be came to
pnoo, I bad uime acquaintaoue with him ; be
ant ialo prison about tbe Utter euil of June,
■■Imoe K^ullenteu Bpuke to me to have Mr.
liBC Wile with me, and be allnwed me 5s. per
waafe; but tlw fcntlemei) jcrew uneasy at hii
Amoc wiih tlietD, because thai he was sume-
Anf otn of or Jer, and somelimealter growing;
mna, tlir uentieman with wham he luy quar-
nUfd with him, and 1 could not afford to board
kin any Ioniser, he not beiog able to pay me ;
urfnAcr he wia turned from my table, aome of
tt* Uphntdin' Company came and desired me
l»il»ebiin aa usual ; and etery iDoming I
Mmed hJBi a breakfast, and a plate of not
vkUBb ud drink, and I had the key of the
■Ma ta two w tbm diva after be was put in.
Mr. JimL i'oge. llaw came yon by tbe
Zjurfsw. floRielimes it was half ao t
tAnr, Hid 1 Mid, if tbcy would not lei
hi** Uw k«), 1 wuubl not furnish hiin
Mr, joaL Pa^t.
B key.
Louden, Though t bad thekey, and had tbe
liberty of going in, I bad no power to let him
out. He was nercr out, from the time he waa
put in, but once, and that was when some ser-
•BDta of ihe Upholders' Company came to aes
him, anil then Barnes lacked bim up a^in ;
and ivben he was out be was siurk naked, and
ran into the chapel with the feathers all about
him, and I went lo take lum lo carry him in
again, but he was very sturdy, and would not
let me.
Htiggins. Ill all the time you bad the h
and tbe custody of bim, which was from tl
Ihird day after Ills goiog into Ihe room, till
three days of his coming oiil, did you lee mt
in the prison? — Louden. 1 did nnt.
Huggins. Do you think you should, if I bad
comeP — Louden. Yes.
Huggifu. If 1 had been In the bouie, should
you hareseen, or heard of it ?
Louden. I should.
Buggini. Did any-body sit up wlih Mr.
Louden. There was somflxidy sat up with
him a few nights before be died.
Huggiiu. I submit it lo you, my lord, whe-
ther 1 hIikII produce the people of the Up-
botdriVCompHny tbalsat Up with him.
Mr. Just. hu'. That will be of uo great
Huggim. Was there a court of inspectors,
who gurerned Ihe prisoners?
Louden, Yes, there was.
Iluggiiti, Do you renii^mher yoD saw Mr.
Gjbhon there then ?—iai<Jf«. No.
Hnggim. Did the prisuoera disjiose of their
rooms ? — Louden. Yes.
Sir. Baron Curler. I don't understand very
well what way you propoae to make your
defence ; if Mr. Gyhbun liad the sale power,
(hen tbe court of inspeclora could nut; firat
Mr. Huggins is not coocerued, because Gyb-
bon waa ; and then he could not be concerned^
because the court of inspectors was. Mr.
Huggins I take tn be wiu^en, and Gybbon
deputy -warden.
An. Gen. What kind of a place is tbe Strong
room?
Loudrn. It is a brick-wall, nod arched oTcr
with bricks, and the floor is boarded, and at
that time a beiicb went across the room. There
is a bole OTcr the dour, with four or live iron
inh3
tbe side ; it
was
I^W
huAt
room
about
eight week
belo
eAr
put ill
, there
was
lire
plac
, no
any
conve-
Alt. Gen. Was it not the occasion of his
death?
Louden. It was possible it miijht. I Iieliev*
it might do him prejudice as to his health.
All. Gen. Did it hasten his death ?
Louden. I du nut know but it might ^ 1 bt-
lieve it did hasten bis dealh.
.((t- Gen. Wlmgaveyoulhekey?
Louden. Tbe turnkey ; uud 1 team
MS]
8 GEORGE 11.
Triai qfJohn HuggmSt
[S44
Att. Gen. As yon evne to take charge of
it, did you alivays keep the key ?
' Louden, Soinetimea 1 had it, and sometimes
they had it.
Sir, Just. Page, Do you beliere you could
have lived there six weeks, if you had been put
in that room ?
Luuden, 1 doD*t believe I could.
Morgan Gwyn sworn.
Huggim, Were you a prisoner all the while
Mr. Arne was there ? — Ovyn. Yes.
liuggini. Did you seo mein the house dar-
ing that time?
Gwifn, I difl not hear that you had been in
the house all the time be was a prisoner there,
nor did I see you.
Huggins. Do yon think if I had come, you
should have seen me ?
Gwyn. 1 do think 1 should.
Huggins. My lord, 1 have witnesses to prove
that { was in Hampshire from the b^inntng
of September till the middle of September ;
that one part of the time that Hopkins and
myself are said to be at the strong room 1 was
out of town, and another part that Hopkins was
out of town.
Wm. Huggint sworn.
Mr. Just. Page. You are son to the pri-
soner?
Wm, Huggint, I am, my lord ; I hare a
house in Hampshire, and 1 remeoaiber by se-
Teral circumstances, that my father came there
the 1st of September, and continued till the
14tb or 15th.
Huggins, Was I from your house during
that tiuieP
K'»i. Huggins, Neither my father nor myself
were; that being tbe long vacation, my father
was absent from bis business, and was out of
town at sir George Oxenden's.
Richard Smith sworn.
Hugnint. I desire he may be asked, my
lord, whether he saw me in Hampshire, iu
1725, at my son's P
Stnith, Mv lord, I saw Mr. Hoggins in
Hampshire about tlie 14tli or 15th of Sep-
tember in that year ; and he was likewise there
some time in August.
Mr. Just. Pu^c, Was Mr. Huggins twice
there in that summer?
Smith, He was there for a great many days
at one time.
Mr. Just. Page. Did he go op to London,
and come down again ?
Smith I cannot say whether he did or not.
Mr. Just. Page, Did he come up and down
sevrral time.^ ?
Smith. He was constantly there for some
days.
Mr. Just. Page, What are yon ?
Smith. I am trnant to the estate which Mr.
Huggins purchased.
Robert Knight sworn.
Huggins. Do ynu kuow of my beiog at roy
son's bouse in Hampshire, in 1795 f
Knight. Yoo were there between tlie4lh and
11th of September, and stayed 15 days.
Huggins, When did Iretura?
Kntght. The 15th.
Huggins. Was 1 there in Augsst loo f
Kmght. You were there bctweeo the flUi
and 14th, and stayed seren days.
Charles Bird sworn.
Huggins. Do you know of my being al ay
son's house, in Hampahire, in 17S5 ?
Bird, You werethere in August, 1795, abont
the 7th, but J cannot soy bow long you «t>f0i
there ; then you came down on the 1st of Stp-
tember, and returned the 15th oi thm sum
month.
Huggins, My h)rd, I wentfcom tbanotkls
fierkshire.
James Green sworn.
Huggins. Did you see me in Hampskare al
my son's in 1735 ?
Green. I was a serrant then, and liwi m
Hampshire at the aame time; and yoo
there on the 1st of September, and
till the 11th ; and in the same year yao wan
there iu August.
John Tucker sworn.
Huggim, Whom are you serf ant to?
Tucker. To air George Oxendca.
HugginM. Was I any time in BeriuhiMflB
1785?
Tucker. You werethere in September, tfii|
and on tbe 17th I carried yoo from WittaahiBi
in Berkshire, to Henley upon Thames.
Huggins, Did you carry me any farther?
Tucker, No.
Mr. Just. Page. When did Mr. HngiriBS
come there ?
Tucker. I did not mind that ; I know Ike
time when I carried him from theoca, bat
cannot tell when he came there.
Sir George Oxenden sworn.
Sir G. Oxenden. My lord, Mr. HusginsasMl
be came from his ^n's about the 15tb of 8s**
tember, and .came to Hi'oley abont the lYta.
I remember very well that Mr. Huggios was
at my house in Berkshire, because sir Ccail
Biftbop being there (it was the day before av
after Watlingtiin fair, which was the 18tk),
Mr. Huggins offered to purobsse a little fans
of liim, wbich Mr. Huggins said he woald
make a present of to his »on, wliicli, I thought,
was a kmd, good-uatureil act: be went away
on the 17tli or laih, and I rather believe it waa
the 18ih, because on that day 1 went to Wal»
lii!(rton fair.
Mr. Just. Page. How long did Mr. Hu|^
gins stay at your house ?
Sir G. Otenden. Mr. Hoggins was not thara
above two days, and said that he came ooiaf
Hampshire.
Daniel Hopkim sworn.
Huggins. I fliwrt obser? e, mj laN| tka wKr
Jor iJie Murder of Edward Arne^
A. D. 175».
[8M
•Md, Uuit Mr. Hopkins was witli me,
ikithe WM premit at the strontr room.
Ur. Just Pmge, Mr. Hopkins, pray when
M JOB go oui •t'lowo P
Mcflmu. I went ID the Oxfoni ootch on
Ifiadaj, the 97th of September, 1735, and
|«li Word that oifrbt; and on Toesday took
Iks Wsicester coach to Moreton in the dtarsb,
saAvoft from thenoe lo a pUce called Barton,
tsmiHr. Oakley 'a, a relation's.
Ambs. When did yoQ return ?
Bjfhii. I camt back on the 14th of Oc-
Mv ■ Ibe same year.
B^lfinM, I desire, my lord, ha may be
liirf, tfatar he aaw ne m the prison in the
■sdi of September?
BtfkUm, no, nor in October ; for yon were
MtCBOMback on the 19th.
Ibgfm. Were yon at the door of the strong
1MB with me f
Utfkimt No, I WM there by m vself.
Im^OUsAire. Do you know Mr. Fairing-
Mf^Bipkim. Yes.
In. Cieikir§* Don't you rsmember that he
IWiHRe with you ?
Brnkkm. I dea't remember any eompany
VHtkcre then.
Iq. CAesftire. Was Barnes there ?
BbUm. No.
k^Ckakin. Who opened tlie door ?
iMiai. I cannot tell.
% Cktakirt. Did you see Mr. Aroe ?
Wytmi, I saw him there ; he was naked ;
kthsd something aboot him white, but 1 can-
Majr what.
m Ckakire. Had vou no discourse about
^wm?'^ Hopkins, No.
Herj. Cktskire. Did not Mr. Gybbon send
J9§ Is Mr. Hoggins aboot Arne P
Btfkuu. No.
8w|. Ckahire. When you were at the door,
M you aot whisper to aoy ooe P
napkin$. No.
Stg. Ckakire. Whose servant was Barnes ?
BtffkinM. He was servant to Gybbon.
Isn. Ckeskirt, Who named him a watch*
Hapkiitt, He was a watdunan when I came
; and 1 saw Gybbon pay him several
fls^ CAcsAire. Whom were you appointed
Bmpkimi, I was recommended to Mr. Gyb-
bsn by Mr. Huggins.
8ar|. Cheshire. Dad you do any business for
9
jkins. Yes, and attended him constantly
H hb' house every morning ; but 1 never had
SMr^iBg for that trouble.
■■i. Cheshire. Did you buy your place P
Hafkim§» No.
flBi|. Cheshire. Did you take all those
Fs In Mr. Hoggins for nothing?
Memkms. He had seklom any thing for me to
); I was in the morning generally with him
■Bt seven o'clock, and left him by nine.
«iq.CiH4M.D9j9BlnowMrs
Hophms, Yes.
Serj. Cheshire. Had you no discourse with
her about Arne as to bis condition ?
Hopkins. I do not remember I bad.
Ser). Cheshire. Mr. Hopkins, pray consider
with yourself, and answer directly, whether or
no Mrs. Le Pointz did not desire you to speak
to Mr. Hugffins about Arne, and you said you
would, and mat you came to her alter, and told
her, that you had spoken to Mr. Uumins, and
that he said it was no business uf his? Pray
consider, and recollect yourself.
Hopkins. I cannot recollect it.
8er|. Cheshire. How did Arne come into the
strong room P — Hopkins. 1 do not know.
Seij. Cheshire. How long was he there P
Hopkins, Six weeks.
Scry. Cheshire. How long was it in that time
before you heard he was there?
Hopkins. It could npt be long.
Serj. Cheshire. How long after the beginninnf
of the six weeks was it that yon saw him there?
Hopkins. I cannot tell how long ; it could
not be long.
Serj. Cheshire. Was there any matter in the
gaol that you did not acquaint Mr. Huggins
with P
H(^kins. I seldom acquainted him whh any
/>f the transactions.
Serj. Cheshire. Do you remember you ac«
quainted- him with this man's being in the
strong room?
Hopkins. I do not know I did.
Serj. Cheshire. Did you hear aoy complaint
of his being in that place P
Hopkins. I cannot say that 1 heard any
complaint of tiis bcinj; there.
I ^$c^j. Cheshire. 1 have in my hand, Mr.
Hopkins, an exaniinaiion of your's, and 1 would
have you consider with yourself, and I will ask
YOU one question or two. Do you think the
kcepiuif the man in that place m us tlie cause
of his death?
Hopkins. I had been very credibly informed
of the indisposition of Arne before.
Serj. Cheshire. Upon the oath >'0U havetakeo,
was not A roe's lieincf C4»nfined in that place the
occasion of his death P
Hopkins. 1 cannot say, upon the oath that I
have tai(eo,ithat it was, as he was mad and sick
before he was put in the strong room. I believe
the madness was the occasion of his death.
Att. Gen. How long after Mr. Arne was
confined was it that you saw him P
Hopkins. I «annotsay how long ; I balievt
it was in the mouth of September.
Att. Gen. Did not you see him more than
once? — Hopkins. 1 do not remember.
Att. Gen. 1 ask you again, Did not yon
see him more than once?
Hopkins. 1 do remember I saw him a s^
oond time lying on the floor, and the upper
part of his body was then naked.
Alt. Gen. Was suy pri^uer in the Fleet
contiued in such a strong room before ? *
Hopkins. None was put in there befofnp nor
in any such.
S47]
S GEORGE li.
Ati. Gen. What kind of room was itf I
Hopkins. The roof was arched; it was built -
eren with the i^rouud, and bailt not long before
Arae was put in there.
AU, Gen. Did you obaervethe condition of
the wall ? — Hopkins, The room was damp.
Att. Gen, What officer were you belonging
to the Fleet P
Hopkins. I was Clerk of the Inquiries.
Att. Gen. Did not you go to Mr. Hugglns
frequently P
Hopkins. I went to Mr. Muggins three or
four times a week.
Att. Gen. What did you go to Mr. Hug-
gins upon P
Hopkins, J went to him about his own bu-
tioess.
Att, Gen. Did you never attend him on
nominjifs about the business of the prison ?
Hopkins. I hare acquainted him with some
things.
Att, Gen, Did not yon acquaint him with
natters of consequence in the prison P
Hopkins, I dicf, if they were matters of any
consequence, or extraordinary.
Att. Gen. Did not yon acquaint Mr. Hug-
gins with Mr. Ame's being there P
Hopkins. The reason is why I did not, that
I went out of town on the 27th of Septembo',
•nd did DQt return till the 14th of October.
Att, Gen. I ask you. Whether you betiere
in your conscience you did acquaint Mr. Hog-
gins or not P
' Hopkins. It is very likely I did, if I was de-
sired.
Att. Gen. Do you believe in your conscience
you did, if you were desired P
Hopkins, Why, I rerily believe in my con-
science 1 did, if 1 was desired.
Att, Gen. How do you know Ame was mad P
Hopkins. I heard that he was.
. Att. Gen. Would not hb own room have
been a sufficient confinement P
Hopkins. I bdieve it would.
Att. Gen. Did vou receive any order from
Mr. Hoggins for the relief of this man P
Hopkins. I do not know that I did.
[Upon which his Examination, which was
taken belbre Edward Hughes, esq. upon oath,
was read, to shew his prevarication.]
Mr. Just Page. I ask you, Whether in the
month of September, there were not a great
many people discharged out of custody, and
whether there was not any one room that be-
came empty P
^ Hi^kins. I believe there was, for fifty or
sixty persons were then discharged ; but I had
nothing to do with the affair of rent.
Mr.JaaLPage. Was there any room better
Ihan the strong room empty ?
- HopJans, Any room was better than the
ttrongroom.
: Mr. Just. Page, How long was Ameoon-
timied there after the 7th of S^itember P
Hmkiu. lit was ooBtiaiwd tb« till he
died7
Trial of John HuggitUf
Mr. Jnst Page, Was there toy roe
house so bad as that P
Hopkins, I do not know of any.
Mr. Just. Page, When so many n
charged, might there not be a room tl
might be put in P
Hopkins. 1 do not remember any di
of rooms.
Mr. Just. Page, Were there no plac<
where the fiflv or sixty lay P — H<^kin
Mr. Just. Pate, \Yas tnere not a re
for one man to Re in P — Hopkins. Yes
Att. Gen. Had you any discourse
shop about ArneP
Hopkins. I do not remember he ev
to me about him.
Att. Gen. Did Mr. Gybbon never
you in the presence of Bishop, to spea
buggi--. that «>»e «« rS^t ST
AmeP — Hopkins, He did not.
Att, Gen. Did Mr. Gybbon ordei
speak to Mr. Huffgius to get him into
hem, and to spebk to Mr. Taylor to gel
Mr. Just. Page, I must observe
Huggins owned that he only did it (
of Ame's being got into Bethlehem) as
and not otta^cfiifs warden.
Mr. Lee. Mr. Hopkins. I ask yo
ther vou at any time spoke to Gybboi
one dse, to give Mr. Huggins notice
being in the strong room?
Hopkins, I do not know that I did.
Thotnas Smith sworn.
Huggins, What resolution did
holders' Company come to, as to the c
ing Ame out of the Fleet P
Smith. He was servant to the Coi
Uudertakers at Exeter Clianffe.
Mr. Just. Page, Do you know if i
to be discharged, or how P
Smith. Martin and otiiers, membc
said company, first arrested him, and
carried to a bailiff's in Hare-court,
there a considerable time, and then ^
ried to the Fleet ; and upon an appli
the Company of Upholders, they agre
charge him, and get him into Bethleh
Huggins. My lord, he was a vei
man biefore he came there ; and 1 d
witness may tell you what condition h
Smith. In the month of April, 1722
in a weakly condition.
Mr. Just. Page. Mr. Huggins, I a
mityou into that evidence.
Huggins, I desire to call peopl
character.
Mr. Thomas Ame sworn.
Huggins. He was chief moumer to
desire he may acquaint you what rel
vras to him.
Ame. Edward Arne was my nnde'
know that he was in prison ; he lay sc
at an officer's house, and from thenci
moved to the Fleet.
&sggm* WheA did y oa go t« tiitt
t\e Murder of Ed^^ari Arne. A. D. 1729. [350
ttflierp in my conscience, be would not hava
been guilij of Ibe cnielly laid lo his charge.
RoUrt finer, PSq.KiTorii.
. — doy« Wfore lie ilied I
. . eiiquiKd for liiro, and lliey
locked ufi, Biid directed me lit go
■■ Terningbsm'sraan.
^—.^ — door shut ?
irK. It waipadlocbeil; belly down at the
mk ff Uia loom Dear the door, aod I found
•a* nvt alioiil him. He koew me, and look
Mti the biuid; be wu then very ill, aod
«Mdlwdty speak. I asked him, what hbs
tewt of bis rin^, sesi, (^Id-headcd caae,
iM Mtcr Uiing* of laluef lie spoke very
failj I wilk much dilltciilly undentood l>y a
tmt mm mrI tlicu, that one SearU, a mercer,
Wm tome ttf them ; aud afleriratdB upon
«fi>y Tinmit, that be bad hia gold walch,
•Wl he biid lent tiim Iburleeii guioeai iipoo.
AifpjtL Did be make any coru|iUiul to
Jrot. He was not cnjiable of complaining,
Btfpnd. What slate of bealLh wai he in
Un* be csoM there ?
Art. 1 belicre be wat in a waatiug condi-
im bdare be wat arretted.
in. Otm. Did you bear any complaiot u to
thkM(>n the ftronf; ruoin !
A» By bim I did not.
JItOn. At Ibe lime when you came la
ttlia, wai (be room in a condllion lor a tick
•TtPtfliBaaP
Jf^ I Miete it wai not fil for a tick or a
wlHan to lie in it.
Jtt. Cen. How long do you think jou
MU h«>a liTcd if you hod (mcd confined in
ir^. I coold nol bare lived six or leven
itjigWdiiHild not believe any man alive could
4*Aac«x orieven week*.
Ja.Citn. How oflen were you Iherer
Arm. I nevev Mw it but ooce.
JU. Gtn. Ita you think you could have
M tUn tLX weeb f
Jmt. I tJiiuk I could not live six weeks in
ttMiiU titv or cundle.
My Ion!, I desire to call some
Hr. Jbu. J'«^. Tbnl you may do if vou
tekfii.
Sr CtM'g* OmiuIch, hart, sworn.
Sr C- Ofrndm. My lord, I have known Mr.
BanlBa akani nine jeara, bm have bet'n more
MnSdwl* acqiuininl wilb bim these four or
kvcyeantait prntl ; I never took him lo be an
M MlMul or barlnmiis man, and do not believe,
vinUftj, ka would do an inhumane thing to
ny aar.
irMti HittdtCoii
a, liart. sworn.
Haffuu. Pray gitu un account liow long
}«iba*e known me.
Sr /. CmIm. My lord, I have known Mr.
IqpfWa atoail font or tltc year*, and hate bad
«in«M ■■ h« a ipiiMl deal wiih bim. I lielierc
Wuhcfood-aaluraJ, bunaoa mao ; and
Finer. My lord, I have known Mr. Ifugginf
ever since I can remember any thing at tdl, ha
bas been concerned lor onr family tlieae forty
or Sfly years, and I lived with him two years
together ; and I take him to be a good-natured
and humnue man ; and, in ray conscieni'?, be.
lieve be would not be guilty of a cruel thing W.
any man.
John Hedgeii esq. swom.
Bedga. My lord, I have known Mr, Hii^.
gins about six rears, and always took bim Inr
a good-nalured and humane man ; and hsf*
since had an opportunity of knowing sereral
instances of lus generosity and good-nature
wilbonl fee or reward: 1 have known bim six
or seven years as a general ncquain lance, and
he was very good natured and humane ; and
some time since I have known some iustaoccs
of great generosity and good-natore, merely
for the pleunieol doing good, without fee or
John Knighl, esq, sworn.
Knight. Mv lord, I have knotrn Mr. Uug-
gittslliese ei(|ht or nine years past, and fre-
quently had opportunities of being in convema.
lion with faim, end I always took bira to be. at
far as any man hiing Irom doing any! thing
that was cruel ; and always acted agreeable to
the character of a humane man ; and 1 am
very sorry any such thing sbould ke laid tu hit'
charge.
Chritlophcr Tiilton, esq. sworn.
TilUon. My lord, t have known Mr. Hug<r
gins these five-and-thirty years, not super&<
cially, but in narticular friendship, and have
(bund him in all instances a man unblamable;
and 1 never saw any thing lending to cruelty
or ill usage ; and have alws" " '" " " ' '
far these ibiity-fire years.
Major Churchiit swom.
Major Chtirchili. My lord, I have known
him these fuiiy-fiTe years, and have had fre-
quent communication with him, and alwayf
found him a friend and a roan of humanity,
despising of money ; there was one thing, in «
most particular manner, I will acquaint yon*
lordship of
Mr. Just. Page. I can't admit you into ft
pailicular character, but you may go en with
a general one.
Major Clturchiil. I never thought him ca-
pable in lb ought, word, or deed, of doing a
cruel thing.
ThomiuG'tbion,t9t\. sworti,
Oi&jnn. My lord, 1 bave known Mr. Hog-
gins for tbeae seven or eight years past, and
lound him lo act with gawl-Dature, lultgrity,
hosaw, asd bspsauitj, ,.l
always found him
351]
S 6B0RGE II.
Thft Rer. Dr. Fttru (Hector of St. Mar-
tin's in tlie Fioktoi afterwirdt Bishop of Ro-
chester,) sworn.
Dr. Featxe. My lord, Mr. Hugfpns is a
Teatry man ; and I have had naore uarticakur
reason to converse with him freqaeoiiy on that
account, and f ne? er found any tbinff in him,
that was any way consistent with wnat is laid
to his charj^f and have constantly foond him
at church.
Edward Thompton^ esq. sworn.
Thompum, My lord, 1 bare known Mr. Hugf-
gins these seven years, and have had frequent
experience of acts of his friendship snd jfood-
liature, and never discovered any thing m bis
kehaviour, but the utmost good- nature.
Thomas Wotfari^ esq. tfworn.
,Woo4ford. My lord, 1 have known Mr.
Muggins many years. I have been with bim
both sober ai\d mellow, and never have dis-
•avered any thing barbarous or cruel in him ;
and I verily believe he could not be guilty of
any such act if he knew it at all.
Jmeph T^^loTf esq. sworiK
Tt^lor. My lord, I have transact^ a great
deal of business with Mr. Hu^ns, and wtud
him act with candour. Sometimes I have been
oonctmed against him, and sometimes with
him ; and, ir ever I bad sn9|iected any thing in
him tending to cruelty, 1 assure you, my lord,
i would have shann«l bis company instead of
seeking it, as I have done.
Martin Bladen^ esq. sworn.
Bladen, My lord, I have known Mr. Hu^-
gins many years, and have lived by him m
the country tliese eight or nine years; and the
character that be has had is, that be is a good-
natured, himiane man ; it has been his whole
business of life to leave a good character} and,
therefore, I canU believe he wouM do an ill-
natured act.
John LadCf esq. afWwards sir John Lade, bart
sworn.
Zaifs. My lord, I hare known Mr. Hog-
glns ibese forty years^ and have seen a great
aumy kind, compassionate things of him.
Sir CharUt CoXf kut. sworn.
Sir CharU$^Cox. My lord, I have known Mr.
Hoggins these forty jrears, and have had fre-
quent dealings Wi^ him, and alwavs observed
him to be a man of charity and hnmaoity ;
and I have ooofted bis company from the good
•pinion 1 Ifave Irad of bim, and don't brieve
that he would be guilty bf any inhumanity.
Bimttd Hakty, esq. sworn.
Batey. My lord, I faaTc known Mr. Bag-
■tar tbirff jraars, and have been oonver-
#liii bitt, mi UA dbdftrvation I have
•f hiui i% thall bav* fbind kirn Mdoua
4
IS
Trial qfJohn Hugpns,
to do good offices, where bo had
reward, and never found bim coveto
Sir Jamc$ Thomhiilf knt. sw
Sir James Thornhiii. My lord, 1 1
Mr. Huggins for these twenty- five
I was pro»d of the hononr of nis ao
I have never seen or heard of the
act that he has done by any one
was to repeat the instances of gc
t
Mr. Just.Pa^e. Sir, you can't t
to do that.
Thomas Martiny esq. swor
Martin. My lord, I bsTe known
gins these thirty years, and that he
great many kind and good natnred
never knew him a vain man, but th
throBgh good-nature.
Colonel ^^gui sworn.
Col. Negus. My lord I have knowi
gins, a great many years, and alw
upon bim to be a good-natured man
it was impoanUe to think be coul
natured an act, as laid to his charge.
' Campbell, esq. swor
Campbell. My lord, I have knowr
'ns irom fifteen to twenty years, a
und bim behave himself with int«|
profession, as a good natured man, a
thought his genius far superior to
natured thing. 1 always bad, and
good opinion of him.
Hoggins. My lord, it appeared to
shin, that Mr. Oybbon was the actii
ana that Barnes was bis servant.
No argument can be drawn from th
not sitting, the custom of the place is
but as to sny application to get
Bethlem, that, my lord, can't be ap|
gualemts warden, for it woold be oa
good-natured act: If Barnes put hii
not my servant; if so, then the
roust fail.
That as to the witnesses they wen
and they are natural haters^ of their i
I never went to the prison* but li
dred people about me, and I must
seen by many ; there was no preteM
any barbarity lo any man, nd uione;
torted : and when J could no way bi
by it, no one can think, my lord, J
g guilty of murder, where no wnefit or
y it could arrive.
Mr. Louden, my lord, who had the
the man, and had the key till three d
his death, had never seen me there ;
that had the key did not know of
there, who shoufd P 1 . shewed, my 1
was out of town in September, anc
waa out of town till the 14ih of C
that it was impossible^ that we twc
there togetlier. All the other witm
bttve beev called agaiist oatiwoiik
353]
Jbr the Murder qfEdxnard Ame*
A* Di 170*
[354
Up from that day to this in prison, had they
B^ hut tbor hononr, or kMt their desimis.
I BCf cr saw the man, nor beard there was
■ch a prifoaer, and to morder a man for no-
thiif , God Almighty knows there nerer stood
a au at this bar with more innocency than
fle^ CJkahire. It is plain on the king's side,
Ihil a sahjcct has been murdered ; and what
Mr. Hi|giD8 has endea?oured to show is, that
ht Kicr acted, but had a deputy, and that de-
fif vas aooouDtable, if any body, for he had
M acfnaintanoe of this thing ; your lordship
hikeanl the witnesses, and J don't doubt but
ti relate the e? idence fully.
1W Counsel for the Prisoner objected to Mr.
ftijeaat Cbei hire's replying.
llr. iost. Fage, I am of opinion, brother, you
cntrepljr.
8er|. Ckahire. But 1 may say something
livlMt baa not been gi?eo already in evidence.
Ati, Gca. Mr. Huggins endeavours to shew
Ail GjrbboD was the acting- warden. No, my
M, aehher by a lense or deputation Gybbon
smM aoc be appointed warden.
Ir. Just. Page, Mr. Attorney, I cannot admit
}M to enter into any reply, but if you have any
tnlflHe you may call them.
Elijah Beavii sworn.
AtL Gem, Were yoi\a prisoner in the Fleet,
ii*aycarl7«3.^
BsBMff. Yea, and I had the liberty of the
nisi, hi the year 1793 ; and in the year 17S4,
lomsntitled to he cleared by the Act of In-
tfbeaey, but hecaate I could not give the
vaiiu money enough, was continued till the
a 1725, and I usmI to see Mr. Hopkins at
v's, where Gyblion kept his office, and it
■M ffeoerally accepted by every body, that
jftafas brought directions from Muggins to
GjhoB every Jay.
Aii. Cen. Have you heard Hopkins say,
te be bad directions from Mr. Huggins to
Gjbboo, and that he came from Huggins.
Beans. 1 did not hear any particular di-
RctioDa.
Rickard BUkop sworn.
Alt, Gen. IVho gave directions, as to the
■uagrment of the ^ol ?
Bithop. The particular things were done by
Roijgins'a directions; but the common things
vitboot.
Joteph Johntcm sworn.
Ait, Gen. Do you know of any directions
WaKbt from Mr. Huggins by Mr. Hopkinsi to
Kr. GybboD
Jckiiom, I have heard Mr. Hopkins say, that
kcaoM from Mr. Huggins, and that he bid
bacoine every murniug to him ; and that one
tae Mr. Hoggins sent word back by Hopkins,
te 1 should be locked up.
Uwrrf HugheSf esq. (a member of the House
of Commons) sworn.
J^tt. Gen. Sir, what have you heard Mr.
VOL. XVII.
Hoggins declare, as to the acts he did doring
the time Oybbon was his deputy f '
Hughes. My lord, it appeared to me
Mr. Baron Carter, Sir, you are not to tell os
of what appeared to you, but what you know of
your own knowledge.
Hu£he$. My lorS, I can't tell how knowledge
should come to me, until it appeared to me.
(After some pause Mr. Hughes went on.)
My lord, Mr. Huggins was ordered to attend
the committee, and while Mr. Huggins was
there, he was asked, what escapes had happened
during the time he was warden ? He said, he
could not give an account of them, there hail
happened so many ; but said, that Oliver Read
had escaped, and when he was taken, that he
Mr. Huggins had ordered Corbett the tipstaff to
nut him in irons, which were sent for from
Newgate by his, Huggins's directions, and
owned that he did it by virtue of his authority
for an escape ; this confession Hogeina maiie
himself, and owned, that he had paid 500/. for
such escape that Read had made.
Mr. Baron Carter, Was it Mr. Huggins or
Mr. Gybbon ordered him to be put in irons ?
Hughes, 1 did not say it was BIr. Gybboa
bid him be put in irons, but it was Mr. Hug«
gins, and that he ordered him to be put in irons
as warden, and in all escapes he acted as
principal, for he |mid 500/. for that escape.
Mr. Baron Carter. About what time was
this?
Hughes, It was upon the first escape that
Read made ; it was in the year 1726, that Read
got off those irons, and made his second escape^
and was re-taken ; and then he was put in the
dungeon.
Mr. Baron Carter, Was there any particu-
lar time mentioned ?
Hughes. I have recollected, and it was in tha
year 1726 ; what points out the time, is Read*s
escape.
Seij. Darnell. That paper produced by Jef-
freys amounts to a. lease.
Mr. Just. Page and Mr. Baron Carter,
Whenever an agreement is made to make a
lease, that can never be esteemed a lease*
Proclamation was made to keep silence.
Mr. Just. Page, Gentlemen of the jury, this
is an indictment against Mr. Huggins the pri-
soner at the bar, and one Barnes, tor the mur-
der of Edward Arne. The indictment ia in-
deed ])arTicnlar ; the indictment tnkes notice,
that Hu^ius was warden of the Fleet the 1st
of October, in the late king's reign ; that he
being warden, had the government of the pri-
soners in tbe timA that Barnes was an agent of
his, who is Aefi from justice, it sets forth,
gentlemen, that Barnes seized upon the said
Arne, and carried him to a place, called the
Strong K(K)iii ; and that Jlnggins was aiding,
al>etting, nnd assisting in carrying him to that
place, anii he was continued there the space of
six weeks ; that this is a place of cold restraint,
and u room newly built, made of brick and mor-
tar, very wet and until to live in; that this
I S A
555] S GEORGE IL
Barnes did oontiiiu^ him in this place for six
weeks in a most iMtrbarous and vile manner,
and not allowed him any necessaries, iosorauch
that he had no chamber-pot, he was without lire
or ftre- place, and liad only a little bed. This is
the nature of the dungeon. It is a vault arched
over, and in the wall a little hole big enough to
put a quart- pot in at. It is built over a common
sewer adjoining to a laystall, where all the dirt
and fihh of the prison lies, which made it not
only so noisome, but very unwholesome, that
the continuing this person so long in this place
was the occasion of his death. That Mr.
Huggins was acquainted with it, bnt shewed
him no favour ; he was not let out, and died in
the middle of October. He died, gentlemen,
by this duress of the prisoner. I will say bnt
little to what the law is in this case ; a prisoner
for debt is only taken like a distress, and kept
there till he or his friends can pay the debt for
him. Imprisonment is no punishment, it is not
taken as part of the debt ; for let a man lie ever
80 long, his heirs at law cannot be exempt from
the debt, but if thev have effects, are answera-
ble for it. He is kept only iu such manner as
he may be forth- coming and safe ; this being
the case, he is to be kept in here in a becoming
way, as the warden may be safe, and the
prisoner forth-coming, nut in no other de-
gree that the prisoner should be punished, by
any unreasooanle restraint. If this Arne was
kept in no other way than became the subject
of the king, in that reasonable manner, so
that yon may take it, there was no torture, ill
usage, or any act, but such as was fit and de-
cent for conhnement, no duress ; then and in
that case, though he died there, it will not be
munier.
But if by the evidence that has been called,
it appears that this mom was an unfit place to
lay tnis man in, that it must be the means of his
destruction, that (being in such imprisonment
as the gaoler cannot justify) will be duress ; if
they carry that point, it is part of the common
law, the ancient law, and very rightly observed
by the counsel, that it will be murder. It would
be very hard to take away this law, though in
his own defence ; as be wns entrusted with t!ie
life of the king's subject, he was answerable
for him, and the coroner's inquest ought to
have sat unon his bo<ly ; the law is*so much
afraid of the loss of the life of a subject, that
tlie king will have an enquiry to see what is be-
come of the life of the prisoner. It was opened
by the counsel for the king, that it was wilfully
omitted ; on the other hand it was urged that
this custom seemed to be asleep, and that it
was hard to lay a great wei'^ht, where it had
not been so long practised. Gentlemen, there
have been great numbers of witnesses called,
and therefore I cannot give it word for word,
but will repeat as far as is necessary.
Mr. Longborn was called to prove the first
part of the indictment, that Huin^ins was war-
den ; and he proved the copy ot the letters pa-
tent granted to Mr. Huggios, who might act by
himself or deputy.
Trial of John HttgpnSf
I
Bigrave gave an account, th'at Hiig|
patent bore date on the 25th of July, ii
ISth year of the late queen ; that Mr. Hog
though warden, did not act himself, but
pointed Gybbon as deputy ; and that seen
were4aken by Huggins not by Gybbon, tl
to be considered in fioint of law, that tb
must be brought against him as warden
the making of a deputy does not dischargt
of his duty ; in several cases be doea not
tinue answerable, for iu civil cases the dem
answerable, therefore the security isr lo
with him. It is a very strong eviileooe
the wai-den still continues warden, ihi
ought to see to the escape of prisoners, foi
is not only trusted to the honesty of the
den, but be is to take the best care be a
escapes. He says, that Gybbon did bu,
place, that he did oversee and look afiie
aifairs of the Fleet, and filled np several
rants, but always in H uggins's name ; tbi
did apprehend that Barnes was only a se
to Gybbon, and that Gybbon, no doubt, ba
immediate trust of the gaol ; and that Bi
was a runner to Gybbon, and not Hugg
servant. He agreed what this place was ;
it was arched over ; that it was eight feet i
eleven feet lon^, and nine feet high ; tl
was built very little time before Arne was <
mitted there ; he could not describe the v
situatiou, but gave an account that it was
nigh the dunghill and filth, had no cbii
nor chimney- place, and had only two
holes to let the air in. He gives an acoou
Hopkins ; that he looked upon Hopkins
Gyobon's servant, besides that he was dc
Mr. Hugs^ins at his house in St. Martin's-
and generally went backward and forward
days to Mr. Huggins, and was able to give
an' account of what happened in the g^ol.
Hopkins tells you, ne was Clerk of th
quiries, and that all the security -bonds
letl with Gybbon, but left in blank ; and '
he had enquired into the securities, the sect
bonds were filled up by Gybbon ; that Qj
received all the money, and he heard that
bon was to pay 400/. per annum for it, but
all went on in the name of Huggins.
Bishop says, that he was tipstaff under ]
gins ; that he did pay for his place, whict
him 300/.; and that about 1724 or 1725
was brought a prisoner first, and was carr
the Vine, and tuere continued about a m
and afterwards was carried into prison, an
with one Shaw, and upon a quarrel was li
out, and the strong room was built at tlie
end of the summer ; and it must be gra
it was not fit for mortal man, scarce any I
to be in. Gentlemen, this room is totally
for any roan to be put in ; and that it
strongly proved, that from the nature ol
place, and the circumstances of the weatb
was the occasion of his death ; that it wai
built, not almve three or four yards fron
dunghdl, and that every thing of nature
done in it ; there was no chair, no prov
only an old bed. That he saw him before
Murder of Edward Amg.
Barnes came
tjtf (bout tilled in the comnDn-yBrd, aad
«pM lliii •Ed tdl GyltboiiorbJim and tbat il w
Ml di for Uie (HKir inui lo be left alone, so
«H OtUt For liiiQ lo ^ In Betblcbeni ; and
WjBOoafUr lUe man waB|iiil inlo llie strong
mn. Tn ga along witb Mr. lIugginB, I muni
likkaiMicc uraiioUertation lie made
m •«« unfit I'ltr a man to go naked ahoiit
^■|lEi«rv were wotucD ; and il wa» lit he
dadUb oalined aomuwbere, lie (s]>eakiDK
rf bkaft) give* snnie nccouul nr Barnes, ai
^WtocuuDl wb«Q lb« roomwaa built, jiut
VklMr eudol'tlieyear; itiat he did hear he
«itn a my nild canditioni tliat Barnes
^m v/ tbnu dill npiirelieoil Gylbnn lo h
4r«A powvr i but Ibnl Gybboo acled hy the
li^ltity ofilf. Ilii^gios; bul thai beivouid
i|flf to Hr. H ug^a about it, and did ask the
•■■■aet i( it wat not proper to gel hi
hwhhfcwB ; aod HuggipiolMErved '
raf ibc office of warden of the Flevt, but
ni^l br a friendly office use his interest
«M Ui. Tajlor, and Ihat would ehew him
»««kliaouiie man than one guilty ofcruelty.
Vfcf* aoT ibitig special hapjiened, thai waK
tHdMMbv Clug^ins', Ihat tliough Arne was
b iktl codililiQn, thaui;h there was no occasfoo
«Ua*rJ, and uu cause for putting him inin
ftanoni, Hu^iiit not otily a principal, {vho
il iKoirablF lor his ileputy, wai ofien in the
lbl,aiu]aair liimaereratlimei whilst Gylibon
««4i)>uiy,aiid Arne in that coniinemeol, and
Mgne iinlfri abnul several thint^ of moinenl.
Ifwdabnew (fu disordered, hut never did any
N IhiBf to pot him in ftar and hazard ; the
mm an« Jid any hurt, he mlg-ht drink, but
talkn* wereotlierronnislo |>ulhim in ; no
ffeveMilH lie found to |>ul this man in so bad
MIA*. >Vbea he wa* turned out frnm Shaw
WW ■ liille place that he put up in the coio-
»•« luli, aiid his Eooila were carried down
IWn. It ins very hard lo imaifiiie, if he was
■M *«r* well, if be wni a liltle distempered, il
na 1 FT)' (t ran^ thai no place could be found
Wlb* tirvnfc room to put hiui in. VVheo I
■Mcla uk the queatioii, if there were other
■Mm «bri« it>« uian might be kept with
^tiy, il waaMid, ihat th«rewereroauis where
ha tui^t hf put in fliiMy ■, but it was not
AMgLt fit he sJiuahl go into a place fil lor a
ChiMian la tff* in, bul iulo Ihia plactr.
Mr- (.^«4i0D. by the Umk. shews, hewaa td-
at»t\ a \M\*oaet on ineane process in M2i,\o
A^fce did nM rajiiir,.' Ui M kept in the same
Metan* ■> on ■xrciilioii. The cate of the
farfw H la kreji snalu cuiluily, liul not so ^cal
■• antxie iwaeoi ; if a man in eMCuliun liir
IMCii, wai to eicape, he must pay the whole
: iHiacuniigt dcblhnoQiiieiineprocessi
K*«(wit«ris sm aiiHwerahle. the ^auler
** -W ftf Ibo irbt, ihe ((auler is n" tunher
"tte ibaD for Ihe perion ; to that ilie
■ AM •» K'MI. the daDner wni nnt la
t inay he Uie reason that the
tm, hn-aBO the Uaxard is not so ijreiil i
A. D. 1729.
and thai he wii ■
M^
.tchmau
Ihere.
Farriiigtnn apprrbends, that Aroe came it)
about Ihe middle of June, and thai he was in
good health when he came in, and that be
jievei knew him do au ill tliii]«r. uoi' that he
iiould drink ; that there wna no danger of hi*
breaking priinn. That he was i,ut into the
etruuf; room in Septemlier, and conliuueil
Iherein till the middle of October. When he
first Cftone into the prison he lodged wiih one
Koberl Shaw, and Shaw threw his bed out of
■he room ; he then put bis bed iipoD a settle,
>nd he lay therelill he was carried to the Strong
He did uot fee Arnc locked in the Simng
Aeom, bill did see him taken away, and tays,
that the room was Dot built abo^e six weeks
before the poor man was carried there. That
it wan m very wet, creen, and so much outing
from the marlar, that one might witb oue'c
hands strike Ihe drops off the wall ; and gate
Alhei
r, that it
not tiled lo, and be was contiuued there from
the middle ofSeptember, to the middle of Oc-
tober, end lay in a miserable condition, not only
having his own excrements slicking about him.
bul the fe.ilhers of Ihe bed, having opened U
and crept rato it for warmth. I need not take
notice of the silualion of Ihe place, ihat has
been fully desciibed. There were only two
Biiiall hole* to )el in Ihe air, there was no fire,
nor fire-place. He says, ihal ufu-r some lime
the poor roan grew hoarse. One of Ihe wit-
nesses aays, iTial be had a shivering hoarse-
nea, andso continued hngeringon till be died :
before he died he came lo a bad hoarseueM,
anrl his senses and voice were so fair gone
afierwnrds, Ihat be could not speak ; tlien
nature failed, befell away, and death grew
upon him, then be grew delirious, and in Ibii
poor condition he had noihing bul a feather-
l>ed, which a gentleman bad lent him, laying*
in the dirt in bis own excremenls, and in k
nasty condition, and no way left lo preserve
life, but to cut his bed open, and lo lie in tha
feaihera as long as he cuuld : being in thia
■nisnable condition, he came into the church
more like a fealliered lb»l, than a human
creature, Ihat the featbera stuck all ahuiit
hiu) ; be burst nut and came to the church ;
lie was remanded hack again, aud had no oom-
totlor relief. Farringlon, oneof ihecvidencei
■ays, Ihat he saw Hopkins and Uutfgiusal ihe
iloornfiheHlrong KiHim.and the door tvaiopeq,
nnd Hugginti looked upon him. aud Hopkins
and Muggins whispered, aud talkod uigeiher,
but he uas nnt near enough lo bear nbu
was said, bul HiiKg>u> shook bit head ; not
only Gybhon bni Huggias himself locked him
up, with Uames, aud Ibis ivasal Uie lime whto
the door was open, and Barnes ktpt ilie key.
Il was when the door was o|,en, and Huggiiia
looked in upon him, thediscuunie you will biiit
SSgj S GEORGE II.
Hiifjfeins knew of it then, and then might hafe
saved his life ; he might have taken the proper
care as he ought to have done of him ; if Mr.
Hug^ins had flone his part, it would have heen
no onjection to Huggins, and if he difl nothing
at thai time, you will judge how far he did pity
the roan, whether he did know of it before or
BO, if he was privy to his being kept in that
dui-PFs. he had sufficient power, and nothing
could bar him of having the superior power,
for, in the presence of his deputy, be might
act; he that put the man under duress uot
only was told of it, but saw the misery of it ;
it makes him in law a priucipal. That place
was so damp, that he himself was in there, but
three days, and was almost killed in that time.
It made his legs swell, and he had been dead,
if he had continued there longer. That man
died therefrom the noisomeness of the place.
Fulthurpe says» that Arne and another pri-
soner were drinking with him a pot of ale (that
gentlemen, don't create great anger in the Fleet.)
The witness says, that he paid five shilfings
per week for boanling, and Barnes came up
and seized upon Arne aud carried him away,
but he did not go to follow him ; that Ame
'was very quiel, and he went the next day to
see how it was with him, and there were loose
boards, which he apprehended to lie on the
common sewer, and the walls were all gieeu
and wet, and that it was a miserable place :
that the man continued six or seven weeks in
this Strong Room.
He says, that he saw Huggins come twice
into the Fleet, while Arne was in the Btroug
Room, but whether it was the time that Far-
riugton was there can't be certain ; but that
Huggitiii, Hofikins, aud Barnes were there,
and were luokiner u|)on him. When he came
there a second time, he can't say that Hug-
pns came to look on Arne, for that he stayed
there only half an hour, to take care of the
prison and prisoners ; that Arne was in health
at, and before the time he was put in there,
aud that he went to give him some drink at the
hole, and the stench of the room was so great
that it was liLeto strike him down. He says
that to the best of his judgment on viewing
the place, that it was itiipossible for a man to
live there. He did see Arne out two or three
times, but they turned him in again.
Smith says, that Arne, for whom he had a
great concern (which matter is of great conse-
quence, that requires the utmost attention), was
carried to the Vine, and then carried to the
gaol ; that Barnes, who was a servant to Hug-
gins, as Ame was drinking iu the cellar with-
out being the least troublesome, seized upon
Arne, and carrietl him to the Stroug Room : he
lay upon the bare ground, and had nothing to
rest him upon ; the description of the room that
he gives, is, that there was no fire-place, no
candle, nothing to ease nature in, such a stiok
that he was forced to hold his nose, extremely
^ret| and in no condition fit for any one to lie in ;
he havug no credit with Ojrbbon, wrote to
Hoggins sersrd tettersi and in one of them
[96C
Trial of John HugginSf
mentioned the said state of Ame, and sent it b;
Robin the porter, he sent it by the eossiiwi
porter, but did not prove that RobiadeKvere
the letter to Hoggins, or brooght ab answei
and was of opinion, this barbanras treatacs
was th e death of the poor roan .
RoIho was examined as a witness, be said h
did not know what the letters were : he 4k
what he was paid for, but can't take upon Im
to swear, whether the letters were delivered I
Mr. Huggins, and what tiie coatents of Ik
letters were ; there is a chasm in that psif
Paine savs, that Ame was in a good strt
of health, that he might drink, butliiers wa
no ground or occasion to put him in the stieq|
hold, that Barnes was servant to Gybboe, asi
that Gybbon acted as chief* wanleo, and Ihi
the prisoner at the bar did not act. He gan
an account bow the room was built, that it wii
very damp, that Arne grew iKkarse, and lost hii
voice ; and he believes any person ooiUd not k
there without danger of losing his life.
Bouch says, that he wus turnkey , and gsn
an account when the strong room was Mill,
and apprehended it was built by Huggins; Ikil
Huirgins did come to the lodge, but can't my
whether he came into the prison or no ; M
says, that the poor man died after in Odsbsr,
and that he carried a letter to Mr. Hoggisii
wrote by one uf Arue's friends: that be gave it
to Huggins, \\\\o ofiened it, and reed it,wbi
said, that he must leave it, and Mr. Hsj^
gins would acquaint him with the nature of IM
rules ; he further said, that Mr. Hogffins M
not act singly and solely, and I don't ksse
how iiuleiMl he could, 1 dou't know bow bs
could controul a piincipal, he might oas-
trout n deputy; he says, he did apply N
Mr. Huggins' to be turnkey, and was vcr)
often in the prison, and saw Ame, and gave ii
account of his being in that lanffuisbing osa^
tion, and that he died there ; the chief of hi
evidance is, that Mr. Huggins came often I
enquire about the affairs of the gaol, and thi
he was still principal warden, and if any tUni
wrong was done, he ordered it to be rectiM
Tucker was emplo3'ed to make the iron wsril
but don't s:iy by whom ordered.
Mrs. Le'Pomtz says, she saw Ame in lb
Strong Room, and when Mr. Huggins wi
last there, she saw him on the Bare, and llu
he could not come in or out, without conii^
near the strong room, and that it was imposaU
for him to go out upon the Bare, but In gob
that room.
For the prisoner, he does insist upon acfwi
ways of making his defence. He says tbis m
in 1735, and therefore it is not to be ezncdsi
that he can give so good an account as if it hs
been a more recent prosecution ; tbb IfaiB
had slept for three or four years. It was tabi
notice by Mr. Attorney how this came now b
a strict examination, and a very honourable em
snd that he mentioned was the icason it eid
not esGspe the eyes that were so diligent ; ibi
is the answer to that ptrt of the deflnee: Mm
ether part of his defwee ii| whelliir ki «m
far the Murder of Edward Am
A. D. 1729.
Hm wtlh Mr- GyliboD, who, tie
G* anle inaiiD|[«inent, he wm vi'ti-
piH himidl' into a stale of iii»rti'iu. — lie
iitgrvr It fini fW l)>e |iri*oti only (ut hall a
nv, aud thrn Ojilibon, willing In lake llie
■UttMita and proBU, waa tu nay togelbet
mULfK tan. wliich wSB aurrrd on. Ano-
I Wpw «l ht« dcTpnce lliai lir mnile. wbh, ilitit
b Mru*l«)l Mr. Gybbon willi the rnanaee-
■■taf ike uffice ; [le Imil to little knowMire,
Mbeh>4 Mrvrrawnnor hrsnl ur lliu oatiie
tf InMt, nor never knew iliat ihere u as auch a
AwilhLT tDaileriiittsleJiipoD, that tlierewere
tat «l(nat««, Ihal were all tnistahcn, bdJ
•atMcreitil U all ought tn liegiv#n lolhein ;
■J h won't be terj' lualerml. Some uf his
kter lb«T«. enj ollien that he naa nnt U
UoM, lookine upun ir. thai be wus not cou>
vwil at all. 1 o prove tliia he calls tvilDesaca,
■inUnl itt. Tanner lo read ilic laaolvent
to, ikai itrputieB were In make rcliirna of pri-
■■ars. To jiroTe the till of Ihe prisoDera was
mned Uy Mr. Oyblmn. be wouUI have pro-
tari an afidnvit. bul il wh<i tiol suffirieut lo
bpnf. Mr. Tannrr waiaiknl, whelher at
•eliMatbe list »«i ileliverril, Mr. HucK'"*
MiMilwanlcnr HeilidnollliinLfilloanswer
ftu ^iMiltou, and I diil nut preuil very tar:
it I aludl <l>ew you Gybbnn was only depuly.
Tkwti wilneutliit HBg called was Jeffreys,
hikv bow far Gybbon was ooncerat^ in the
*fct; he wa« by when ihv aL-Tvement was
Mle,aad M^ncd by Mr, Huggini. and when
■ CBM M be a queiiion. wbeo that wai la be
■Od. HirlliFril waa aa aifreement or not, he
mMoui irll where it was, it wa« out of hia
fPBir, be CO Id not prudui-e it ihen. Jeffreys
«id il W3a an acquiliance : upon that tiag-
pM radeacotirvd lo |,'ct the pu per, and that
Mm wm a copy nf it laken, and that il wai a
Kwoipy, tbcn ibkt rreeipl waa proper lo be
Mrf: MUen llial rime lu be read, you will
«Hariar wkai il waa; il wm neither leaiie nor
dtpataliMi, only an avrecment tar a lease, w liai
MM waa lo W paid, and how long he waa to
-Iwait. It watarercipl tor ■ depuaittif 1,000/.
1 ibcrc waa a proper covenant and
■ (D Iv perliirmcd. I dun'i go to argue
"") oT il, ifa man had aureed lo hold
nulil be a tease;
hnd Bb[reed cer-
yt«ts, thai woald bare been a
fitftlM aAc*, aiiil uaufficieot evidence of
MMn,t(itiliaaolhin)(b>iiao a^reeineai
fBtoiinn, or a leaae. In ilricttiew of
• BBlbingi lliuughibia may not be in
rbw, ti It <iiif)i<'>eut between them lor
B l« be depul} iu (act. who came with
I hktnir of Mr. Iluggini and with hia
; llitl he WBh di'puly in tact dill carry
b jwi>.aud ihat Hit|{frt»* wh« chief ill tlie
and had the coutroiil tliereof. That a
J ia aMilnuaiaUe by ibc jitincipal, aitd
I wlieD Ihe principal ii there no man can mak«
I a flepnty to execute the office. Thia waa
dated 26 June, 17S3, for l,U00f. and SOOl,
per annum.
I The next waa Mr. Welland ; Ibete waa a
] (HMxl deal said by him about ihe coroner**
Billing upuD drad noilies, not very much lolbe
I imrposi' ; and then be gave an icoount that
! Gybbnn did act during; four yeara, but what
, was l>e«!OrDe uf ihe repaira, who was lo do
' that, I do not find ; as lo the repairs and taxes,
I it is mil settled In ihis day. If upon ibe foot
' merely from the tnisl and conlidepce ono bad
I of ibeolhtr, if all Ihe e^pences were paid by
Air. Ilugginc, then be buill the strDnif room ;
I howAer he was liable tu the charge. You will
Qonvider, geurteDieo, by what law lliia ean be
I built i it wBi putting a show of cruelty in thia
I ofiice. which ibey were no way jutiified to
' build: things lor torment, and not Ibrlheaer-
ricenf the rustoily. ihiiursof that kind are not
(0 he done at the'will of the gaoler, It alwaya
oukI'I to he done by nrder oftheir auperionr;
ifinthe city, <li« act moat be done by tha
mayor and ahlermen ; if not, by the com*
mun-council: if iuth* county, it la notintb*
power of tlie gaoler, it must be done by the
seasioos ; there ate so many gentlemeu of the
se^iootloaee what is proper to be done and
decent for Christiana, that Ihere is no danger
of erecting aoy place of torment I do not
know what authority either Gybbon or Hug-
gins had lo build it; Hug^us might bars
pulled it down, and Gybbuii would have been
answerable fur the cnniempi. There is oo
aereemsnt appears between HuKgini and Gyb-
bon that would clear it up ; betides, as to ibe
repairs we are lelt in the dark Blili.
Wetland says, that io Ihe year 1T25, AriK
was stark oakeil before be was put in the
strong room. Huggins urved, that it was not
designed for any such piiriraae. Welland does
not deny, hut that there were other place* in
the gaol to |iut him in : Ibis was in Ihe very
year when the act passed for insolvent debtors,
when fifty or tixu were discharged 0i> the Tib
of September, before that time.
Another part of bia defence is, that Ihe room
was neither his nor Gybbon'a to answer for;
that there was a couri of the prisoners, wbo
formed Ihemselve* into a jurisdiction, and made
what order and rulea they pleated, and Ibal
tbey were so trouUesome that GvbboD was
afraid to go into the gaol : I do not know what
excuse this is, it would bare been very lit for
them to have applied to another place: and
though Welland does say, Ibal there wai a
reqiieit of some of the prisoners to have him
put into the stroog room, all Ihe terror this
man put any body in, was flinging a brick*
baton the Bare, not aiming at any one, and this
forced them tu put this man under tha restraint
of the slrong room- Il waa the request of
ni.hody, it was nobody did it ; it was rery
much to hate auch a combination, but every
body knows that Welland is an attorney, and
hat beta taken notice of in tUa courla. TIkjf
XS]
9 GEORGE 11.
Triid qfJ(An Huggitu^
tS6i
hiTe oot girco any accouut of any man's
being put in there before. This man being iu
m sick condition, \V«lland was desired to go to
the upholders at Exeter- change, Ihey are very
compassionate, and do assist people of their
fallofrsbip ; and he had some relief given
liim. He says, that he never kneiv Mr. Uug-
gins give any direction in the management of
any matters after Mr. Gybbon became deputy,
mnd gave an account as to the coroner's sitting
upon dead bodies ; that he took Barnes not to
bo Hnggins's servant, and Gybbon therefore
was answerable for tlie act of Barnes. He
aever ao much as saw Mr. Hugginsand Barnes
together, and that he did not so much as know
•ny rule- money paid to Huggins ; that Gvb-
bon generally was paid -the fees, for Gybbon
paid 900/. per annum to Hoggins. Whether
a man takes the fees all at once or not, it is the
^amo thing.
Green says, that be applied to Mr. Gybbon
IB order to have a room, and Mr. Gybbon
could not go into the gaol for fear of this court
of the prisoners ; but at last says, that he did
get himself a room in the house, and did lie
there ; that be aiiprehended Gybbon was the
principal, and did act.
The next witness was one Howard, who was
a prisoner there before Ame came in ; he was
fint carried into the spunging- house, and at
last brought into tlie gaol. When he came
there be bad nothing to lie on, and Howard
had a lied to sell, which Ame had a mind to
porcbaae. Howard, gentlemen, did not give
an account of any freenesa Ame was guilty
of ; but that Ame offered more for the tilings
than he sold them for : whether Arno was not
in haste for them, or whether offered more for
them than they were worth, I cannot think an
aigumeut of madness.
Woodcock gave an accoont of the poor
man's being there, that he was let out, and
after a little time drove in again, and during
all this time he never saw Hu^gins there ; for
he should have seen him it he had come.
Gentlemen, Mr. Huggins put it hard upon
calling these people.
Humplireyssays, that Arne was a man of
some suWance, and said that he did no harm
nor hurt ; that be did some odd acts, and then
he was carried and put in the Strong Room in
the oianner you have beard, and staid there till
he died ; and never saw Hut^gins there till
about the midflle of September.
Louden says, that he keiit a boarding-house,
and boarded a good many there at 6<. per week,
and Arne was one ; that afterwards, when he
came to quit the house and was carried into
the Strong Room, he was desired by the Up-
holders Company to take some care of him ;
that the key was kept by Barnes, so that there
was a difficulty to canry and supplv him with
provisions ; that be aaid be would give it up
unless he had the key ; that he had no autho-
rity to let him out; and that he did keep the
key till three dava before ha died, and then de-
lif^iodjtupt UehMgirevanaoHHiiit^ftbat
act of Arae's running about with the feathen,
and said lie never saw Huggins and Gybbon
there, at the time that Ame was in the strong
room; and that Huggins was warden^ aid
Gybbon was deputy. He has given an ac-
count of the room when built, and of the aul
condition of it.
Gentlemen, Mr. Gwyn said the fame; bat
that he never saw Huggins there.
Another matter that Mr. Huggins insistid
upon, to prove the evidence not to be true, wis,
that he was not in town.
The first witness that he called was his saO|
who said, that from the first of September in
that year his father came down to him in
Hampshire, and continued till the 14th or 15th,
and staid 14 or 15 days ; i do not find bat it
might be after that that he was at the Strong
Room.
Smith proves the same, and that he was
down there before in August.
Knight said, that he was there in August
Bird, servant to Mr. Huggins, junioTt wuit .
that he was there in August seven days ; aid
that be was there the 1st of September like-
wise.
Tucker says, that he was employed by m '
Geonre Oxenden, and that he sent hit coach
with Mr. Huggins from Wittenham to Henlty-
upon-Thamca about the 15tli of September.
Sir George Oxenden agrees with the aw-
vant ; and says, that on the 17ih or 18ih tht
prisoner came to his house, and went aw^
the 18th or 19th.
I must observe to you, gentlemen, that fiev
that time to the death of thip man, there mt$
account given to you where he was.
Hopkins gave evidence to shew the wit*
nesses mistake. Farring:ton swore, that what
Huggins looked in, Hopkina was with him at
that time ; and Hopkins said, that be went
out of town to Oxford, and did not return till
the 14th of October. Huggins came from sir
George Oxenden's about (he 18th or 19th, aai
I do not hear from any body that he amtinned
out of town ; and it is natural to believe he
came to town, for Henley is the road to cone
up to London. Hopkins said, he did not go
out of town till the S27th of September, ao that
from the 19th to the 28th both might have
been at the Strong Room ; and I believe thk
was the time, may be it may be the 19th.
Hopkins did not go till the 27th. What I
must leave to you, gentlemen, is, that thii
witness said, it could not be true that he and
Huggins could be together. Thtje were abent
ten days from the 17th to the 281 h, and it ap-
pears they were both in town ; and it don
seem to come pretty nigh the time. You
gentlemen, Huggins came again a
time ; the first time does seem lo tally,
ran very well, if not both.
Gentlemen, you must take this with yeU|
whether Hopkins does not confirm what rai^
riugton aays, though he said he was out ef
town. Farrington says, once u|ion a tiuMS ha
was aft theStning-Roflai doer i the (loorwasey«9k
Jhfi^ the Murder of Edward Ame»
A.D. 17S9«
[98d
; be did tee the wiinesn, (meaning Hop-
d that Arne crept into the feathers of hia
id Hof^int said, that he was there, but
J not see the feather-bed ; that he was
sthine half iip aud half naked, which
p rmttier contimos than weakens the
e. He (llopktofi) does contradict ano-
itter ; that he does not know that Mr.
s was there at the room, or that he
r him there; that he (Hopkins) was at
Df^-room door, and that he was in the
lanner as the witness that was there
ind he does contradict, that Barnes was
It of Huggins^ and says that Hng-
8 not to be at the charge of executing
ce. Ail that Hopkins says, is, that he
rk of the Inquiries, and that lie did apply
Hoggins, and that Mr. Huggins did
ik fit to put him in, but he sent him to
I to be Clerk of the Inquiries. But that
derk to Mr. Huggins at his home, he
I it ; bnt in a very extraordinary man-
t be took him to do his business for no-
He said, that the management of this
PM not solely and clrarly under Mr.
t ; bat, gentlemen, as to things of con-
es there Mr. Hoggins was called in, so
ippeara that there was a view of his
after the prisoners; and it was ?ery
■tlrmen, that he should, for he was the
Bit upon all occasions. Hopkins sayS|
t does not remember any discourse
ne with Mr. Hoggins, but if he was
be belieres he might do it ; but does not
ler he was desired to do any thing as to
It acems, jpentlemen, that he was exa-
a a strict manner, and a wise enquiry
8 appears by an examination taken be-
vani Hughes, esq. which was produced,
fws, that he had given evidence to you
r to that examination. In that he says,
s was warden ; and that he (Hopkins)
nil the Fleet to liim every day, and told
s whatever was considerable that was
Te ; and told him of Arne. He agrees,
re was a discharge of prisoners on the
>eptember, 1725, when 50 or 60 were
^ ; and cannot say, but when they
oe, bu» that there was room enou'^^Ii to
le in. He denies that Bishop and
spoke to him about Anie, which Bishop
icxt witness is Mr. Arne, who was a re-
the deceased; he savs, that the ffrst
be received of his miserable condition
ot a week or ten days before the poor
!d ; be then went to sec him, and found
>TelKng at the door, that he was not
come hoarse, but almost s|)ecchless:
crept down and fallen at the door, and
% dog. He found him, upon o]>ening
', in a bad condition : his voice was so
K, that it was a difficulty to understand
im bad a gold watch, and he did get
im bj balf words and sentences where
aad said, that the place was not fit for
ysie whatsoerer, neither sick nor well ;
and that beeoukt not have lired a wjeck in it.
Gentlemen, 1 asked one of the witoeaaea, whe
appeared to be a very atrong man (Louden), if
he had been there half the time, would it net
have been the occasion of his death ? Who
owned that it would.
The observation ray brother Carter made if
very just : that if a atrong roan, being put into
that tilthy, vile place it would kill him, to pot
into such a place him that wanted bealtb,
death was more sure. If he was a weak man,
there was no danger of bis eacaping, no danger
of going out.
As to bis being in that room being tbe occa-
sion of his death, there need not much be aaid.
And what ia aaid by Mr. Huggins, except
one thing, carries little or no weight; and
there is oulv that can deserve your considera-
tion, whether he did die by the cruelty of
Gybbon or Huggins P That be did die bj
duress, it is not to be supposed to the contrary.
That in point of law, wherever there is a de-
Euty ap|iointed, the 8U|)erior must answer ; lor
ad a prisoner of 30,000/. escaped, Mr. Hug-
gins must have paid the money.
In criminal cases I do not think, that tbe
warden or any other officer should answer for
murder, anieas be was privy and consenting. If
this sole act was Gybbon's, and Huggins no
ways consenting, 1 think tbe murder lies open
Gybbon, not Hoggins. Though this was the
act of Gybbon and Barnes, whoever has a band
in it, and the authority and power as he had,
if it is true that he saw him, and he would not
give a helping hand to assist him, the excepted
rule of Scripture would be true, • That he that
is not for me must be against me :' and if be
was any way privy to the carrying him and
confiniug him there, he must answer tor the
murder both in this and the next worid.
If tliis is the act of Gyhbon solely, Hoggins
is not to answer for it; but if Huggins was
privy, and be was warden, he could and ought
to have relieved him. ,
One tbincT more, in tlie latter part of the de-
fence Mr. H uggins made for himself, wa8,;to call
vast numbers of gentlemen of the first quality ;
sir George Oxenden, sir John Hynde Cotton,
in all alwut twenty he callcil to his character
and credit ; and if \hcsc gentlemen are not suf-
ficient, 1 do not know what will be: his cha-
racter has been fully estaliliHhed ; but I mutt
observe to ^ou, whatever the character a man
heai-s, if he is guilty of that act which destroys
his character, his character goes for nothing :
if there was difficulty or great doubt happened
upon circumstances, whether Mr. Huggins
was guilty or not, then it was the constant
practice to be govemc-d by a character: I
think nobiMly can have a better ; he has had a
very great character given him.
Not long since a person produced twenty-
seven |ieople, that gave him a character, with
no comparison to this, only the greatness of
numbers.
Notwithstanding which, it there was not
doubted, he bad committed the fact; and the
967] 8 GEORGE IL
jufj Terj justly brought io their Ttrdict,
fuilfy.
Vmicts, in ooiivicting of people, are to be
foanded apon the e?idence thil the jury has
had before them : aod I hope 1 do not express
myself so for them to found themselves upon
any thing I have said ; for they will determine
aooordiug to the evidence that has been before
them.
Mr. Attorney General produced three wit-
nesses, that came to nothing.
I must take notice of one piece of evidence
given by Mr. Hnghes, a gentlemsn of probity
and distmction, one of the committee appointed
by the House of Commons. He tells ^ou,
that when Mr. Huggins was under examina-
tion before the committee relatiufi^ to escapes
daring the time he was warden, Huggins con-
fessed so many had escaped, he could not re-
member them all : he owned one Oliver Read
had escaped, and was retaken ; and that he
himself sent to Newgate for irons, and ordered
Read to be stapled down and ironed ; and that
he owned he paid 500/. to Read's creditors for
the escape of Read : This was whilst Oybboo
acted as deputy.
Mr. Huggins does gire this answer to that ;
that Hopkms proved that Gybbon acted, and so
he was warden in law ; 1 canuot tell what con-
ditioD Gybbon was in, and what security he
had given ; Huggins was liable for all escapes.
1 hare taken pains to state the evidence to
you as fully as I can ; and I hope you^ill con^
aider it ; and that God will direct you to do for
the best
Then one was sworn to keep the Jury, and
they withdrew, and Mr. Justice Page and
Mr. Baron Carter left the bench ; and Mr.
fleijeant Raby with the lord mayor remained
there ; and in about two hours aud an half the
Jury returned.
Clerk of Arraigns. Are you all agreed in
your rerJict ? — (hnnes. Yes.
Clerk. Who shall say for you ?
Omnet. Foreman.
Clerk. John Huggius, hold up thy hand.
(Which he did.) L(x>k upon the prisoner : Is
he Guilty of the felony and mnrder whereof he
■tanda indicted, or Not Guilty ?
Foreman. We are sgreed to bring in our
f erdict special to the Court.
Att. Gen. What is there doubt in point of
lawr
8eri. Rahy. What that doubt is, must be re-
ferred to the Court.
Foreman, Was there any medium between
inghiin in Guilty or Not Guilty ?
Serj. Raby. You may find the fact specially,
and refer the special matter to the Court. If
any matter of law arises upon that doubt, it
will be explained. You may give a general
?f rdict in order to refer that to the judgment
of the Court. You must agree upon the fact ;
you must state the special matter : It is usual
Io state the point of law that you doubt in.
U yM have toy doubt ai to the law, that you
Trial qfJohn HugginSf
must refer to the Court ; but aa to the
you must determine yourselves.
Ait. Gen, What is it nMkes the qu
doubtful P
Serj. Raby. The jury do believe the pi
in some messure guilty, but not of the
indictment.
Foreman. We cannot find any of th
deoce come up to shew be was aidiog, ab
and at^ting'bames in putting him ii
room.
Seij. Raby. Call over the jury.
Cl.rfArr. Answer to your names. (^
they did.) Are you all agreed in your vc
Is John Huggins Guilty of the murd<
felony whereof he stands indicted, o
Guilty ?
After considering sometime among
selves, the Foreman spoke as follows :
Foreman. We agree the prisoner wi
cessary to the murder committed upon £
Arne, but that it was not premeditated in
that he lias been privy to the cause <
roan's death, and might have preven
Two witnesses swore, that Mr. riuggi
at the door of the dungeon, and saw
there ; and, as he did not discbarge him
time, he was accessary to that.
Serj. Raby. If lie wss privy, he was
of that: if he was privy ana consenting, if
concur in that act, he is guilty; for
implv malice.
If he died by duress, and he was cone
and consenting to it, then he was guilty
act, in that he had power to redress it, \
not. If he was privy, you must consid*
was concurring.
Att. Gen. If he was privy and consec
does imply it.
In all special verdicts the jury nev*
malice.
In no special verdict they find ma1ic<
Foreman. 8evei*al of us don't thii
guilty of the malice.
Atl. Gen. The law will imply the mi
Serj. Raby. You are to consider and j
fact.
Foreman, We all agree that Arne i
duress ; there are two witnesses to prov
but that the prisoner had no forethough
The Jury again considered among
selves; but not immediately agreeing
drew, and staid out some considerable Ui
then relumed.
Clerk of Arraigns, Are you all agreei
Foreman. ** W e are agreed, that ther<
ficient evidence to prove, that they s
Hugt^ius at the strong room.
** We agree that he was warden of tl
prison ; and that he was head-wardei
time the fact happened, as mentioned in
dictment ; and that Gybbon was dept
acted as such.
*' That James Barnes appeared Io u
servant to Gybbon, and was emploj
acted under him* in taking car« of tha pi
Jor Ifie Marder o/Edwsrd Arn
A. D. I72i
■rani Arae, iu ihe in- j durets ol'lha raid imiirisoDmral antl ilctaining
, tben and tbere a prtMner in id the roum alorctaiil, ilied, \a wit, at Luodun,
being: they Inrtiier find, that &!C. Aiul they furtlier liiid, ihnt durini; the
"" "' "'' '■" ' ' " " iddelaiiiini-uf ihewiJ BdHuril
■, iheTlh or September,
m't" I9th ynr, ttc. in and upon (lie laid £d-
Mrt Arae, a ftriauDor Iu the same priiou theu
■ iftnMalil li«ui^, in manner and foroi as in
ttaaaliMlivinMnt i* >|iv('ifiBd, made an t$-
a^ ■ I bfin Ihe itid Edward Arne, then and
IkR vnlioul hi* consent, in manner anil Ibroi
■■•be ■aiil indleliaent iaipeeilieil, touli, and
im A« •*><! Edward, Arne to a cerlaln room
MfeM iIm> luid priwn then newly huill, in the
■■• ndictnicnt tnenlioned, wiihout hi> <.'on-
■M. !b niautfer, flee, eonreycd and led, and
t^ tke aaid Edward Arne, in Ihe auid room
Itr a laog; line, to tvH, fiir ilie space of rnrly-
InTdata from tliencF next following', without
Ike MMcnl of liini the said Edward Arue, In
■MMr.Aco, rtnntlEOnrd auti detained, and him
to tMd Edminl Arne, (h«n and ilieret for all
to lim* laU'tnciKioned in that room, < ahaqne
*MlMMin* iffnia nevnun sine aliqua matula,
■^■pbia, it\ ali^no aliodujustnodlutensili,' [□
hmlta anil be Hiihinit hia eongeni iu roinner,
fet forcctl : aad liiey I'urther find, that the
••Ikaf Ihe aajdnuim were made of bricks and
flnv I and al lh« aaid lime of the impriion-
tmt nt iIm aaiil Edwiinl Arne in the same
n^ my dam]! ; and that (he said room was
Mate uicr (he connnon se(Ter of Ihe aaid pri-
aa, near tlie place ■ alii Konles el finiiis pri-
' «ne prwda'tff necnon eicrcnienta prii'in^rio-
' t^B pne'dl<\toruiii adtiino iiaualiter p<wiia fiie-
'•W,' by mann whereof (lie uiid ronm wsb
tnfin' imwhutesDme, and if really danfferous
■ toUe uf any perton daliined in (he same:
mai Ibej further liiid, that the said James
toss, at ibcaaid lime of (lie imprisonraeni of
to M«d EilwBtd Arne in thai room, well knew
tot Ae caid room had then lieen newly built ;
ni ibM (be traUi of thai room were itiuile of
teiifta Odd DiorUr, and were llien rery damp ;
aalthat Hie mid room wan siluate so aa atbre-
m1; aod (bey further llml, that during the
«U iftfiMdiDeiit, and detaining of (he said
Mwanl Ariie In iIk' «Aid room, to wit, liy ihe
nof Aftcrii days at Uaat before Ihe deaih
■ said Edward Arne, the said John Hug-
fio* hMv that the aaid room had been ihen
Wwly built, and tliat ihe walls of that room
nn mmI* af brichi and inoilar, and then were
fcap; but whether the said Johu Hugging
lanr, ilMrtsn theiaid 7th day of Heptembcr,
is IIm 19<ti vrar, \<:. ihe jurors know nul : anil
■brj fan\%*t fmrl, ihitl die said Edward Arne.
toiH* ihr tiid itn|>riLaiiiiielit and detaining of
fcha lb: Kul Edward Aine in tbs said roiiro, to
W. Ac HHh da^ uf liie same month of Sep
* ' in llir J'ilh year abotesaid, by diircai
i«« im|iri*>>DiDenl and delainiii|;, b«<
fc IB (he laid room ; anri iherehy from
c loih day uf Hcpi*mlier, ill (he 13(1
•nud, until thr VWh iliy of (Ictubri
n IWlhiwIntf , ill Ihe said mom lan^ish'
al 20Uid»y «1' Oolubcr, in Ibi
rftoM
imprisoniDcni ai
AriiC in the ssiil room, to wit, by the H)iace ol
lilleen days at least before the ileaih of'ihE said
Eilnard Arne, Ihe said John Huitt^ins was
loce preseiil at the said room, and iheu and
here saw the said EHward Arne in that room,
inder the duress of ihe said Imprisonment, and
Ihen and there lumed away ; and the aaid
James Barnes locked the door of Ihe ramt
room, al the sunie lime in whicb (be w\<\ John
Hii^ltiDS turned away al alilreaaid (ihe tauic
Edward Arne. at the laiil time in whii.-h the
aaid door was locked by tlie said James Barnes,
being in (he said room iindf r duress of tlie said
imprison men I.] And they fjnlier And, that
the said Edward Arne, in ihe Kiid room, ainler
duress of the said imprisonment remained, and
was cominueil from the eaiil lime in which Ihe
said door of the said room waa sn locked by the
■lid JanuM Barnes as atbresiid, nnlil the said
hich (be said Edward Arne su as
aforesaid died ; and they t'urlher Bnd, that the
soil! John Huifgin* sometimes acled aa warden
or keejier of the aaid prison, daring the line iK
which be the sam« Thomaa Gyhlmn was de-
puty of llie said John Hii|;ginH in (beaaidoE-
llce as atbresuid; but whether upon the whols
inatler," ftc.
The Record of this Indictment and Special
Verdict bein^ removed into the Kini^'s-tiench
by C'erliurari, it waA argued on 'I'uMday the
leih ol Jniie, 1730, by >lr. tVilles, liir the
kin^ i and Mr. Serjtiuit Eyre, for the priaoncr.
And on the lait dny uf Michaelmas lerm Ibl-
lowing, atier the case bad been arf;ufd on the
14th of November, Bl(ier|eant's-inn- hall, hettire
all the twelve judges, the lord chief -justice
(Raymond) deUierral the opiuioo of the judt^es.
In this case two questions have been made,
first. What crime the facts foonil ujuki Barnes
in ihe !^pecial Verdict will amuunt lo i Second,
Whether the nrmnner at tlie bar is found guilly
of the sume offence with Barnes f
First, As lo Ihe lirsl question !( is very plain,
(hat (he facts Oniml upon Barnes do anwunt to
murder in hiui. Murder may he cummitteil
without any stroke. Tbc law has not cuiifineil
the olTence tu any purticuinr cn'cumstuiices or
manner of killing i hut there are as many waya
to commit iniirder, as lliere are tii di-itrov «
man, pnirided the act b« dune wllh mafir«,
(iiher express or implied. Hale V. V. -id, 8
tuM. ;)V. Murder is, where a fierwon kills anii-
Iher of ibiidiiii!, so he dies wilhin a year niid k
day. Hale P. C. 43. And malice "niny he
either expresaed or implied. In (liiit caw th«
jury ha*e toiind ihe molioe exproM ; fur (he
facia chxrgeU on Barnes ore laid inllie indict-
mei't lo be * ex msliliaiiua iineimirilala,' In wil,
ilial he, liavinn the eusindy nf Arne. assnulied
him, and carried him to Ihisuuwholcsoine room,
and conBiieil liim Ihere by tbrce auunisl hia
will, aad witboiU bii c«BNat,«id wi
871]
8 GEORGE II.
Trial of John Huggtust
[9»
dictment sets forth, << That Joho Hnggini,
from the 1st day of October, in the 12th year
of the late kinff, to the 1st day of January next
following, andlongf before and after, was war-
den of the prison of the Fleet, &c. and that
James Barnes was, darioff that time, serf ant to
John Huggins, and empToved abont the care
of the prisoners ; and that James Barnes, * ez-
' istens persona crudelis nature et immanis
* dispositionis erga prisonarios in eadem prisona
■ ezistentes,' on the 1st day of Noyember, in
the 12th year, Sec, made an assault upon one
Edward Arne, then being a prisoner in the
same prison, under the custody of the said
John Huggins, and him the said Edward Arne,
then and there, with force and arms, &c. un-
lawfully, feloniously, wilfully, and of his ma-
lice aforethought, and without the consent of
the said Edward Arne, took, and him with force
and arms, &c. to a certain room, within the
prison aforesaid, then newly built, unlawfully,
&c. conveyed and led, and him the said Ed-
ward Arne, with force and arms, &c. in the
said room, for a long time, to wit, for the space
of six weeks, then next following, unlawfully,
&c. imprisoned and detained, and him the said
Edward Arne, then and there, with force and
arms, &c. for all the time last mentioned, in
that room, ' absque solamine ignis nccnon sine
« aliqua matula, scaphio, vel aliquo alio hujus.
* modi utensili,' unlawfully, &c. forced to re-
main and be (the walls ot tlie aforesaid room,
made of bricks and mortar, at the aforesaid
time of the imprisonment of the said Edward
Arne, in the same, being very moist, and the
room aforesaid being situate over the common
sewer of the said prison, and near the place
* uhi sordes et iiinus prisonie predictoe necnon
* excrementa prisonariorum pnedictorum ad-
' tunc usualiter posita fucrunt,' by reason
whereof the room aforesaid then nas very un-
wholesome, and greatly dangerous to the life
of any person detained iu the same.") And
the indictment further sets forth, ** That the
said James Barnes and John Iluggins, at the
said time of the imprisonment of the said Ed-
ward Arne in that room, well knew that the
said room had then been newly built, and that
the walls of that room, being made of bricks
and mortar, were then very moist, and that the
said room was mi situate as af(»resaid." And
the indictment fiiithcr sets forth, ** That the
said Edward Arne, during the imprisonment
and detaining aforesaid, iu the said room, viz.
the 7th of November^ &c. by duress of the
same imprisonrntnt and detaining, liecaine sick,
and thereby from the same 7th day of Novem-
ber, until the 7th day of DeceinlH?r, then next
folluvving, in the room aforesaid, languished,
on which said 7th day of Decenilier, the said
Edward Arne, by duress of the imprisonment
and detaining aforesaid,- in the room aforesaid,
dieil," &c. The indictment further sets forth,
** That the said John Hoggins, being a person
of a cruel nature, and savage disposition, and a
grierouB and inhumane oppressor of the pri*
IB the iiuiM priaoBi undtr hit custody
being, during his said imprisonmeiil and de-
taining of the aforesaid Edward Arne, in tht
room aforesaid^ viz. the said 7th daj. of No-
vember, &c. and divers other days and tinwii
during that imprisonment end detalnioff, al
London, &c. feloniously, wilfully, end of In
malice aforethought, was present, aiding, tkd^
ting, comforting, assisting, and maintaioijf
the aforesaid James Barnes, fekmiously, wt
fully, and of his malice aforethoughtt the wui
Edward Arne, in manner aforesaid, to kill lai
murder : and so theiurora afbresaid, apoD tbek
oath aforesaid, say. That the said Jamee BenM
and John Hoggins, the said Edward Arne, it
manner and form aforesaid, feloniooslyy wiU
fully, and of their malice aforethought, did kil
and murder, ag[ainst the peace,*' dte.
On Not Guilty pleaded by the priaoacr,
Huggins, the jury find a Special Verdict, u
follows : *■ That queen Anne, by her hetM
patent, bearing date the 93d of July , in the ISA
year of her reign, granted to John Hnggim^
named in the indictment, the office of wuda
or keeper of the Fleet, and keeper of the priMm,
and gaol of the Fleet, situate, &o. and of ths
prisoners then committetl, or to be committd
to the prison and gaol of the Fleet aforesaid ;
and the capital messuage for the custody of tlN
prisoners, and thirteen messuages in the pariifa
aforesaid, and all other messuages, &c. and all
that rent, fee or salary of 7/. 12f. Id, yearly,
pB\-able and to be paid by the hands of the she-
riffs of her city of London, and her oonnty d
Middlesex, Ike, and all other rents, &c. sod
him the said John Huggins, warden or keener
of the Fleet, and of the prison and gaol of the
Fleet aforesaid, for herself, her heirs and soe-
cessors, did make, ordain, and constitute, bj
the same letters patent : to have, hold, enjoy,
and exercise the said office, messuages, lawn
&c. to the aforsesaid John Huggins, by bimi
self, or b^ his sufficient deputy or deputies, (bi
and during his natural lite, in as ample mil'
ner and form as sir Jeremy Wbichcot, barond
or any otiier warden of her prison of the Flee
aforesaid, the said office and other the pre
misses, or any of them, had before had, held
used or enjoyed, or ought to have bad, held
used, or enjoyed ; with the usual averments
anti they farther find, that the said John Hug
gins, 1st of ^^eptember, in the ISlh of tlie lat
king, and for <livers years before, and oonti
uuully from tliencc after, until the 1st of Jl
nuary then next following, was warden <
keeper of the naid prison of the Fleet ; and thfl
one Thomas Gybbon for all the same time wi
deputy of the sjid John Huggins in the ni
ofhce of warden or keeper of the prison of tl
Fleet aforesaid, by the same John Huggn
appointed, and acted as such bis deputy : aa
they further find, that James BaroeB,'in*tl
indictment nametl, for all the same lime wi
servant of the said Thomas Gybbon, depoly t
the said John Huggins, in the same office i
as aforesaid being, and acted under the MU
Thomas Gybbon, 6ce, in and about the eai«i
the prisoners committed to the aaii PIMMi h
2
^T the Murder ofEdteard Artie.
I, iben an<l there a prisoner in
a lietngt tbey I'anhcr Auil, llint
_ * Banin, the Tlh of September,
liAa IStfa jicsr. Sec. in and npnn tbe aaid Ed-
•■ri 4rar,*a priaoner in ibe uune primu then
nyiRMwJ ttftag, in mannt^r and torni as in
lb*ii<io<licim«nt it apeciBed, made >0 as-
tMh.lBi1 Itiin the said Edward Acne, llien anil
llv laiUtiiiil Ilia cniiii(rnt, in manDcr and farm
■■ Ibe *Bwl imlialinL-ot it tpecilied, took, and
Mi tta* avid Bdwanl, Arne to a certain room
•Mm ibo uid priKiii then tietrly built, in the
•■i tniliniuvpl ineiitliined, wiihout his unu-
ai, m manaer, Ace. convened and led, and
km tltt taM Edward Ante, in llie avid room
Itr • laag timv, (a nit, fur ibe space ot fiirty-
bar day* rtwu ijiirnce next rollnwinui'. vtitliout
Ibt OBKunt or him the tniil Edward Ame, in
tmmm,6ie, implMHiHl auu daUined, and bim
••■mI Edward Anie, ibwi and there lor all
Ife* IMM lMt-«nent)(ineit in that room, ' alnqne
'MlHtisc iffnii a#unno tine altijua tnatula,
'■afbia, til aliauo alio liiijneroodi ulensili,' to
kt fcmni -. and they further ttud, that Ibe
lali of tbe toid room were made of bricks aud
^nff ] anil ax Uie (aid time of tbe imprison-
■Mt of tbe laid Eilwurd Arna io tbe tame
•■• tcry d»mp ; and Ihat the said room waa
aMMotert)i« commnn sewer of the said pri-
a% nMr die place ' nbi snrdes et (imiis prl<
*m^ prBdii-iK necnnn eiuretnenta |iris<in»rJD-
'ns ofwihctorum adtnno utualiier piwiin fiie-
*(■>,' by rt««Dn whei«of Ibe soid rwm was
ta*an noitboleaoDla, andgreaily dan^rous
l«4«Mcufany peraon detained in Ibe aame:
miHttj further llnd. that tbe said Jnmea
IkIM, al tile (aid lime of the ioiprisoament of
lk««Ml Eilward An>e in that room, well knew
tbUAsBM) niom had then btan newly built;
md Ifan Ibe nillB of that room virre made of
taafta and mortar, and were then very damp ;
tad that iIm' mid ronm wat ailuale bo as afore-
«mI: aod Ibey lutther llnd, that dnring tht
wit in|iri«iBioeiit, and dclainiDg of ibe said
UvanI Am* in tbe auid room, to wit, hy Ibe
nsf llltem days al Uatt before the death
t ttid Rdward Arne, the said John Iliig-
finBk>r* tkat the asid room had been then
kEwljr built, and that ibe walls of that ronm
Mt» otMfe of bricks and iiiorlsr, and then were
4ra|l; but whether Ibo «aid John Hnttcios
knoi, ibii nil ihe sDid 7th day of Se|ilember.
i<(- jurori knownot: tnd
liii' aaid Edward Arne,
-'iDisut and detaining of
Vi lie in llie said roiim, bi
i< il,.: \uili <l,i\ (.1 tiic same month ol'Sep.
MMvr, Ml Utc riib ypar RboTe»id, by durcai
(ftha tatne in)|iri«iiiitoent and detaining, ba-
I ibc taid riiniD ; anij thereby from
I Kitli duy of Hepleiiiber, in tbe 13ll
Cahavcaaiii, until ibe <imh day of Otitnbei
■m hllowiD|[, III tbe said room lanf^ttb-
4- M^ iluy of Ueh^r, in lbs
duressof Ihenaid imprbuDinenl and i)eiaiiii
in the room afnrenaid, died, to wit, at Londuo,
&ic. Aud ihey further Aud, thai duriiiir the
iprisonment and ilelainin;j;ul'lbe aaid Eilword
'ne in llie said ruum, w wii, by the siiace of
HIteen days at least before the death of the said
Edward Arne, the said John Huc^int was
once present at ilic said iwtin, and then auiI
ibere saw the said Eilwaid Arne in that rooiu.
under ihe duress of the said i in prison in eiit, aud
then and there tnmed away ; and the nid
James Barnes looked Ibe door of tlii- ram*
room, at the same time in which tbe stud J'lhu
Hitcgins turned away aa nlbrrsaid (the Miiiie
Edivard Arne, at the niil time in wliicb the
fflud door was locked by tlir said Janies Ilame*,
being in ifae said room lunlcr duretis of llie said
imprisiiniiieot. ) And they furilier find, that
Ibe laid Edward Arne, in the siid room, nndec
iluress of tbe said iniprisonmenl remained, and
Iras continued IVom the said lime in uhicb the
said door of ihe said room was to locked by the
■aid J a met Bamcsas aforesaid, until tbe said
time in which ibe said Edvard Arne so as
aforesaid died ; and they further And, thai the
said Juhn Hui;gios sonietimes Bcled aa warden
or keeper of ihe said prison, duriae the time in
which be the sniiie Thomas GyblioD wasde-
puty of the said John Hitgigins in Ibe suid of-
fice as aforesaid ; but whether upon Ihe wbot«
luatler," fee.
The Record of this Indictment and Special
Verdict beiiiBT remoied into the Kini;'s-I>ench
by Ceriiurari', it was argited on 'I'undiy the
iblb of June, 1730, by Mr, Wi)let, fur the
Ving ; and Mr. Serjeani Evre, for tbe priwiner.
And ou the last duy of Michselrats teem fol-
lowing, after tbe cose bad been argunl on Ihe
IMb ot'Nnvember, at 8er|eaat's- inn-hall, befi>re
all the iwelie judges, the lord chict-justice
(Raymouit) dettiered tbe opinion of the judge«.
In this case two t|Uestions have been made,
Hrst, Wbal crime Ibe facts found U)>nii Baraea
m ibe Sjiecial Verdict will Miimunt to F Second,
Whether ihe nrisnner allhu bar is tiwad guilty
of the same offence witb Tlarnes ?
First, As to Ibe tiret ifueMioo it is rery plain,
that the facts found upon Barnes do aninuiit In
tniirder in him. Murdn may be commiiled
without any stroke. Tbe law has not confined
IbeoOence lu uny partiouUr circunistuncet or
manner of kilbng; butihereareasmauy waya
to comuiit niunler, as there are l<> dr'^iroT ■
man, |>ri>Tidvil ibv act bo dune witb malioe,
Kit her «K press or implied. Hale P. C. -Iti, 3
Inst. it. Murder is, where a iiemun kilfs ana-
ttier of ibatiOiF, so be dit« wilbin a year and a
day, -Hale P, O. 43. And malice iiiay be
either eapreaseil or implied. In tbi* case the
jury have I'oiind the malice iriipress ; liir the
facta cb urged on Bameture laid inlhcindict-
meiil to b« ' ex mahlia 'na ptwcni^iiata,' Io wit,
ibtl hf, liasinf! the custody of Arne. oBHinlled
him, and carrit'd him to this unwhoksome room,
and confined him Iheiv by tbrcv ausins: bis
will, tttid witbout bit G«iMuit,aad withuut pro-
873]
S GEORGE II.
Trial of John HuggifUf
[376
per support, * ex maliiia sua preecofloUU ;' by
means ui wliicli he laiiguittlieti and died. And
Ibe jury have found that Baroeii did all these
facts, * luodo et iurma prout in indictamento
* pnedicio s|iecifticatur.'
ilut upon tiudiui^oi' these facts tlicreis also a
plain malice arising in construction of law.
l£ule P. C. 46. The law implies malice in re-
spect of the person killiupf. If a prisoner, bv
durtss of the gaoler, comes to an untimely eniT,
it is murder. It is not necessary to make it
duress, that there should be actual strokes or
wounds. And in 3 Inst. 55, the potting into a
duu^j^eon is duress, or into a place toe strait, S
Inst. 01,* pluis arctmentque defoit,' Cromp.
VO, I'he untimely end, nieniioned by lord
chief justice Uale, is what is meant by Briton,
cap. 11, fol. 18* If a man die in prison, the
coroner is to take an inquest upon the view uf
the body ; and if it is found by the inquisition,
that the person was brought nearer to death,
and faitner. from life, * per dure gard del
gaoler,* it is felony.
The reasons why the law implies malice in
■uoii cases are plain. Because it is a breach of
Lis duty, and of the trust which the law has re-
jjosed in him. A prisoner is not to be punished
in gaol, but to be kept safely. Flet. 38,
Bract. 105. The act also is deliberate. And
the nature of the act is such, as that it must
apparently do iiarm. It is also cruel ; as it is
committed upon a person that cannot help him-
self. And it is committed by force, and without
the consent of the prisoner. So that the charge
in} the indictment against Barnes is murder ;
and the^e facts thund in the verdict, as to
liiui, fully maintain the indictment, and amount
to murder. But Barnes is not before the Court,
lie having tied (as it is said) fi*om justice.
Second. The next question is, Whether the
prisoner, lluggins, is found guilty of the same
offence as. Barnes ; or how far it appears, by
this Special Verdict, that he has bten aiding
and assiikting to Barnes in the committing of
these facts i*
In the indictment the offence is as strongly
charged upon Huggins as upon Barnes. The
indictmeni charges, that the prisoner at the bar,
duiing the impribonnientof Arne in the said
room (the situation and condition of which the
indictment expressly charges Hoggins to have
the knowledge of), on the 7(h of November,
* et diversisjdiebus ct vicibus,' during that im-
prisonment, feloniously, voluntarily, and of his
malice aforethought, was present, aiding, abet-
ting, comforting, aud assisting the said Barnes,
the said Arne felnniously, and of his malice
aforethought, to kill and murder, i3cc. which if
found by the verdict, would certainly be murder
in the prisoner. But there is a great diflereuce
in Uie finding the verdiiit. As to lluggins, the
jnry have only ibuud tbe«e facts, viz. That be
had the office of warden i>f Che Fleet, &c.
granted to him by letters patent of 22 Juiy,
la Ann. to hold for his life, and to execute by
himself or hbi deputy: That he, 1 Sept. 12
Geo. 1, and befort and from thtuMto 11 Jan.
12 Geo. 1, was warden of the Fleet: That
Tliomas Gybbon was, and for all thai time
acted as his deputy in that office: that Jamci
Barnes was for all that time servant of Gybboo,
aud acted under him about the care of the pi>
sonerfy and particularly about the care of Arne:
tlien tiiey find, tliat Barnes assaulted ami ovw
ried by force the said Arne into the room, ntf
kept him there against his consent, prout in At
indictment, forty-four days: then tbev iai
the situation and condition of the room, wnerdiy
it was very unwholesome, aad dangerous to tM
life of any person kept therein : that^ Huy-
gins, during tlie imprisonment of Ame ie tM
room, viz. tor fifteen days before Arue's death,
knew that the room was then lately built, aad
that the walls were made of brick and moitar,
and- were then damp ; but whether be knew it
the 7th of Soptember, ignorant : that Ame, tbt
10th of September, 12 Geo. 1, by duress of
imprisonment, became sick, and laoguiahed It
tile 20th of October, and then died uy duKti
of imprisonment in the said room : that during
the imprisonment of Ame in that room, via*
' |>er spatium quindecim dierum ad minut' be-
fore his death, lluggins was once present tt
that room, and then saw tlie said Ame in ihH
room, * sub duritie imprisontmenti prndicti te
adtunc et ibidem teavertit,' and the said Jtmai
Barnes, the same time as Hoggins turned bin*
self away, locked the door ; the said Ame,tt
tlie time when the said door was locked kf
Barnes, being in the said room, * sub duilit
' imprisonamenti probdicti ;' and that Amt le*
mained under that duress till his death : ihit
Uug^ins acted sometimes as warden, dudig
the time Gybbon was deputy : but it is Ml
found that he acted as viardeii during the coo-
finementof Arne.
The judges are all unanimously of oninioii,
that the facts found in this Special Verdict dt
not amount to murder in the prisoner al tks
bur ; but as this S|iecial Verdict is found, they
are of opinion that be is not guilty. Though he
was warden, yet it being found that there was a
deputy, he is not, as warden, guilty of the facts
committed under the authority of his deput^r-
He shall answer as superior for bis deputy Of
villy, but not criminally. It lias been settled,
that though a sheriff must answer for the of^
fences of his gaoler civilly, that is, be is sub*
ject in an action to make satisfactioii to the
party injured, yet he is not to answer criminally
for the offences of his under officer. He onlj
is criminally punishable who immediately dos
the act, or permits it to be done. Hale P. C. 11^
So that if an act be done by an under offiotr,
unless it is done by the command or directiOBp
or with the consent of the princi|Md, the prindh
pal is not criminally punishable tor it. In this
case the fact was done by Barnes ; and it ■#
where appears in the S|)ecial Verdict, tbalth*
prisoner at tlie bar tver commanded, or dired^
ed, or consented to this duress of imprisoomtali
which was the cause of Arne's death. 1. Nt
commaud or direction is found. And 8. It is
not found that Uuggint knew of it. Thil
377]
Sot the Murder ofEchoard Ame.
A. D. 1729.
137S
vhich made the durets in this case wai, 1.
fiuvci's carrying' and puttinff, and oontining
Ana inthiaraom by force and aj^inst his con-
hbL S. The aituation and condition of this
1MB. Now it ia not found that H uffgina knew
if Iheif ae? eral circuinstanceti, which made
lb duiesa. 1. It is not found that he knew
Hj tkio); of Barnes's carryin^^ Arne thither.
I. liirthat he was there without his consent,
« eilhaut proper support. 3. As to the room,
ila Aood by the verdict, 1. That the room
aahailt of bricks and mortar. 2. That the
wikwtrevaide humida, 3. That the room
■HBtnate on the common sower of the prison,
■rf Mir the place where the fihh of the prison
nd e»creroent of the prisoners were nsually
W, ratiome quorum the room was very un-
ehaitasme, and the iifo of any man l^ept there
vas ia unreal daiif|rer. But all that is found
viib reaped to the prisoner's knowledge is,
dat for fifkeen days before Arne's death he
ibat the room vras then lately built, re-
'; that the walls were made of brick and
r, and were then damp. But it is not
Bor does it appear, that he knew they
vera dangcrouB to a man's Iifo, or that there
aaa a want of necessary support. Nor is it
kmk that be directed or consented that
inadMold be kept or continued there. The
" thiD^ relied upon is, that the verdict
that once the prisoner at the bar was
at the room, and saw Arne ' sub
iaprisonamenti prosdicti, etse avertit,'
fa. which, aa was objected, made him an
ukt and abettor. But in answer to this, 1.
Uif present alone, unless he knew all the
oicmnances, and directed that Arne should
pswisas, or at least consented that he should,
caaaoi make him an aider or abetter in the
aarder. Kelyn^e 113. A man may be pre-
seal, and be entirely innocent, lie may be
cnually present. H, The verdict is, * vidit
Mb duritie iinprisonamcnti prwilicti.' lie
BJI^t see him, and see him while he was
*iiibdaritie imprisonamenti prteJicli,' that is,
vbite be waa in lact under the duress by
baraea ; but it does by no means follow from
tbcDce, tliat he knew that the man was under
this durtas, and it is not found that he did know
it It was objected, that if husaw the man
under this darcss be must know it, and it was
Im duty to deliver him. But we cannot take
tkiopiby inference in this manner. The vidtt
does not imply a knowledfre of the several t'uiis
Ikai made tlie duress. If the nature of this
dawM be considered, it is impossible that it
ihaald be discovered by one sight of the man.
llOMMHStsoi several in||^re(HenUi and circum-
», that are not necessary to be discovered
sight: for thoujjh he saw Arne in the
y«t by the view be could not tell that he
Mre without his consent, and by force, or
he wanted necessary relief. It in not
that the man made any complaint to
hsiier that anv application was made to him
«4e naa's bebalt. If be was there with his
it vooU lake offtha darass. His see-
ing is bat e? idenoe of his knowled^ of these
thingfs at best, and very poor evidence loo. And
therefore the jury, if the fact would have home
it, should have found that Hngfrina knew thiit
Arne was there without his consent ; and that
he consented to and directed his continuance
there. Which not being done, we cannot in-
tend these thingrs, nor infer them. For in spe-
cial verdicts in criminal case^ the Court mtist ,
never intend nor infer facts, but judge upon the .
facts found, and not on the evidence of the
facts. Kelyufre 78. Whether a man is aiding
and assisting in murder or no is matter of fact,
and ought to be expressly found by the jury. ;
Kelynge 111, Rex vers. Plummer. It does
not appear by the special verdict there that
Glover, or the person unknown, who shot off
the gun, did discharge it against any. of tbe
king's officers, but it might be for aught that
appears for another purpose : though npon the
particular circumstances in the special verdict
there are things found Svhich were a sufficient
evidence, that the gun was discharged agaimt
the king's officers, and ao it might be reason-
ably intende<l, considering they were all armed,
and in prosecution of an unlawful act in the
night, which they designed to justify and
maintain by force; especially when the gun
waa shot off upon the watch-word given ; and
as the king's officers were endeavouring to
seize the wool ; the jury thereupon might well
have found that the tusee was discharged
against the king's officers.* But since (they
had not found it, the Court were confined to
u hat they had found positively ; and were not
to judge the law upon evidence of a foot, but
upon the fact when it is found. See Kelynge,
11».
This case was so well argued on both aides^
that some objections on the part of the crown
must be taken notice of, thou^^h they are al-
ready in a great measure anticipated. As,
1. That llus|[gins, as warden, though be
had made a deputy, had still the care of ine pri-
soners ; and it was incumbent on him to see
that there was no illegal duress : and to ex-
plain what the law means by duress, Brit. cap.
11, fol. 18, was cited. If a prisoner is brought
nearer to death and farther fruin life * per dure
* gard del keeper ;' andStaunf P. C. lib. 1, cap.
35, if he keeps him more strictly than of right
he ought, it is duress. And the duress need not be
by the hand of theij^aoler ; for if it is done with
* 1 take it thai the point on which the case
turned was this, it did not appear from any
of the facts found, that the gun was discharged
in prosecution of the purpose for which the
party was assf^iubled. But had it been posi-
tively found, that it was discharged against the
officer or his assistant, the Court, u|>on this find-
ing, might, without encroaching on the pro-
vince of the jury, have presumed that it was
discharged in prosecution of their original pur-
pose. In cases so circumstanced, Rc$ ipiui lo-
quitur. Foster's Iteports, p. 352. Former
£dition.
379] 5 GEORGE 11.
his privity, it will affect him. Bot that is a
mistake ; for when an officer has power to
make a deputy, and has appointed a deputy,
he has discharged himself of the whole care :
the deputy has the whole power, and it is in-
cumbent upon the deputy till the principal re-
sumes his office. Indeed, when the principal
comes to execute his office himself, the power
of the deputy ceases ; but a bare accidental
comings to the place will not determine the de-
putation, unless he comes with an intent to re-
sume his office. The case of a disseisee comiugp
to dine with a disseisor, or to see his pictures,
nkay be very properly compared to this.
3. It was objected, that this murder was
done with his privity ; it is found that he saw
Ame under this duress, et se aver tit. He ought
to have taken notice of it, and removed him, as
it was his duty to take care of his prisoner's
life. Vidit sub duritie implies that be knew it ;
and therefore he was privy to the duress of
which Ame died.
But his consent to this duress is not found ;
it entirely depends on his seeing the man, which
does not import his consent, for want of his
knowledge of the particular facts.
Sd Objection. When he was present, the
power of his deputy ceased ; and then he
should have eased the man of this duress ; and
his suffering him to continue afterwards under
the same duress infers that be knowinglj[ suf-
fered him to continue till his death ; and his not
reforming this abuse implies his consent to it.
But these inferences are by much too strong ;
and the not reforming an abuse does by no means
infer a consent to all the consequences of it.
4th Objection. A person absent may be
principal in murder, as m the case of poisoning.
An infant was laid in a hog-stye, and a sow eat
it; and held murder. Palm. 547, 648. The
same opinion in the case of a sick man laid in
the cold. So in the case of laying an infant
under leaves in an orchard, and a kite struck if,
Poph. 13. Ow. 98. Hale P. C. 53. There the
person who did the act occasioned the death ;
but in this case no act was done by the prisoner
at the bar. There are indeed cases of murder
where no act ^^as done by the persons guilty,
as the letting loose a wild oeast, which the party
knows to be mischievous, and he kills a man.
3 £dw. 3. Conine 311. Staunf. 17. Crompt.
S4 b. the owner of the beast is guilty of mur-
der. In answer to those cases, there is a dif-
ference between beasts that are Jcra Jiatura, as
lions and tysfers, which a man must always
keep up at his peril, and beasts that are man^
iueta nuturay and break through the tameness
of their nature, such as oxen and horses. Jn
the latter case an action lies, if the o\>ner has
had notice of the quality of the beast ; in tlic
former case an action lies without such notice.
As to the point of felony, if the owner have no-
tice of the mischievous quality of the ox, Src.
and he uses all proper diligence to keep him
up, and he happens to break loose and kills a
man, it would be very hard to make the owner
guilty of fdony \ butif throagh negligence tht
Trial of John Huggim^
[SSO
beast goes abroad, afVer warning mr notioe of
this condition, it is the opinion of Hale (H. P,
G. vol. 1, 431,) that it is manslaughter in the
owner. And if he did purposely let htm loose
and wanderabroad, with a design to do mischief;
nay, though it were but with a design to frigjbt
people and make sp<»rt, and he kills a UMUiyitii
murder in the owner.
5th Objection. It is fonnd that Barnes abet
the door in the presence of Huggins ; ani
therefore the continuing of Ame un£r tbatOMH
fineraent will hffect Huggins. But there is no
consent found to his cunfiiiement. What is
found is, at most, but evidence of a oonssnt ;
and even not that, it is only vidit ei se 0veriit,
6th Objection. Jt is not necessanr for thejnry
to Gnd the con.sent in express words, and if facts
are foiud that amount to a consent, the Conit
will judge it a consent. As in the case of ma-
lice, the Court will judge it upon the fadi
found ; and malice is an act of the mlndaawdl
as consent To this it is answered, that malice
is matter of law, and proper for the Court Is
judge, but the consent of one man to the mali-
cious acts. of another, is matter of fact wbkh
ought to be found by the jury. And here il
no consent fonnd, nor that Huggins aided er
abetted Barnes ; nor is there any poeitive fad
found, that must necessarily be conitrned u
aiding and abetting.
There is another matter which the kiag^
counsel insisted upon, that if the Court were cf
opinion that they could not ^ive judgement npea
the facts found m this verdict, that the ptissoir
was guilty of murder ; that yet the verdicts
so uncertain, as that they could not give indy-
ment of acquittal : and therefore, that a Veurt
Facias de novo ought to go. And this brousfat
it under the consideration of the judges, whe-
ther a Venire Facias de novo ought to be grant*
ed in this case. And to speak to that poiitv
the counsel on both sides were heard liefnie iB
the judges on Wednesday the 24th instant.
It was said by the counsel for the king, thai
they spoke to tnis point without prejudice. For
they insisted, that as to the verdict itself tfwre
were sufficient facts fonnd affecting theprisonefi
to induce the judges to be of opinion that thej
amounted to murder. But for argument's sake^
in case the judges should he of opinion, that
thoy were too uncertain to found a resolution
upon, that the prisoner was guilty of murder,
then they argued that a Venire l^icias de novo
ought to go, though it was in a capital case.
1. In a civil r^se, if a verdict is found so nn*
certainly and ambiguously as that no judg-
ment can be given, a Venire Facias de novo
must issue. Co. Lit. S27. 8 Roll. Abr. 69S«
Venn. vers. Howell. Cro. Car. 323.
It was observed that the book of Co. Lit. MT,
speaks of verdicts in general, and does not saj
in what cases : but as to civil cases there is no
doubt.
2. In criminal cases writs of Venire Fi-
cias de novo have been granted. Co. Inter. 599$
b. Uil. 4. Car. 1. B. R. rot. 92. Rex v. Fisher.
8. In capital cesei a Venire Faciu dte nete
3S1]
^ the Mi&dtr of Edward Arne.
A. D. 1729.
[dSS
■lilt CO. 1. ' Id caies of mis-trial. 6 Co. 14. a.
Anio&l's case, the point ag^ed. ^. For mU-
Whaviour of the jury in g^iviug in their verdict.
Ril. 8 Hen. 7. rot. S. piacit. re^« Rex vers.
Wayoer. Ap-eed. 3. As to grantiD«|^ a Venire
Fieas de doto, afier a special ferdict found,
ihiy were so candid as to ovrn, that though
thaic was search made with the greatest dili-
gMep,yet they could not find one mstance, nor
■ Hans an opinion of a judffe, except what
wad by lord chief-justice Holt, in the Case
flf if Kinff vers. Keite, Comberb. 408.* Holt
mpt '* I snoald not be much af^ainst a Venire
dr Mfo." (Coaiyns 17.) And this was re-
~ B«d by some others that heard that opi-
The jurv had found in that case that
Miner had killed the man ; but it did not
eslMily appear whether the fact was murder
sr Muisiaii^ter. Mr. Attorney General in-
Hled, that if there was soch an uncertainty, as
ittt no indigent could be |firen in a capital
cat ; tte same reason held m such case as in
Ml and other criminal cases ; though there is
M precedent of it as yet ; for * uhi eadcm est
"niw, est eadem lex.* And therefore sup[>os-
■|(lbr in th'is it was argued upon a supposi-
lin)that the. verdict was too uncertain to gi\e
jaifBeBt against the prisoner, they insisted
tea Venire Facias de novo ought to go.
Bit the judges came to no resolution, that a
VoiK Facias de novo could not issue af\cr a
ipNial verdict in any capital case ; it being un-
MBoniy for them to determine that question :
flv aa cvcrv special verdict depends upou the
pBliular finding of the verdict, so the nreseut
~ B relates only to the present verdict be-
as found. And as tu that we tvcre all of
I, that this verdict was not so uncertain
u ifcst judgment could not be given u)>oii it.
Piribe facts found arc all positively fuund ;
batthoae facts in the nature of tlieiu joined to-
|Clber, are not sufficient to make the prisoner
gttihjof munler. And if so, then the prisoner
mit be acquitted ; for it is not that the verdict
if naeertain, but it is not full enough to convict
kin. Perhaps the jury uiight have found other
tos which they have not, but the Cotirt can
jad^ only upon what is fouml. (Kel^ng, 7U,
* 8.C. d Mod. 987. SVinn, QOQ.
AnaiK
79.) We all agreefl in the case of Green and
Bedell, on a special verdict, that the verdict was
not full enough as to them, for us to jud^e it
treason in them ; because the verdict only found
that they were present, and found no particular
act of force committed by them ; and did not
find that thej were aiding and assisting to the
rest. And it is possible they might be there
only out of curiosity to see ; and whether they
were aiding and assisting is matter of fact,
which ought to be expressly found by the jury,
and not left to the Court upon any colouraMe
implication ; and accordingly those two persona
were discharged. And yet as to Green, he was
ibund to be among the persons assembled, &c.
casting up his cap, and nallooing with a staff in
his hand ; and that whilst he was among them
he was knocked down by a pari v of the king's
soldiers that came to supprcHs them ; and waa
then taken. And as to Bedell, it was found
that he was there, and being pursued by one of
the king's soldiers, called out to the rest of
the company to face about, and not to leavn
them.*
Upon the whole, there is no authority against
the Court's giving judgment of acquittal, upon
a verdict that is not sufficient to convict ; and
therefore this venlict not finding facts sufficient
to make the prisoner guilty of murder, he
niust be adjudged Not Guilty. And he was
discharged.
* Strange, in his Reports, vol. 8, p. 888, af-
ter mentioning this case of Messenger, Bedell,
and Green,t in the opinion delivered by the chief-
justice, adds to it, (from Kelyng, p. 60) «« On a
s|>ecial verdict it was found, that Thompson
and his wife were fighting, and Dawes endea-
vouring to part ihcm was killed by Thompson ;
and it nut being found, that Thompson knew
Dawes intended only to part them, it was held
manslangliter, witiiout sending it hack to the
jury to be certified of his knowlc<lgc. llicse
arc cuM.s direcrtiv in point as to this head ; and
I must observe that Flummer's case was after
the case of KHt, wherein Holt, chief- justice,
had had this point under his consideration.*'
For.. 'It r EdiCion,
t Sea it iu this Colltfciioii, vol. 0, p. 37 f.
383J 3 GEORGE 11. Trial of Thomas Bambridge, [384
480. The Trial of Thomas Bambiudge, esq. late Warden of the
Fleet, for the Murder of Mr. Robert Castell, before the Righl
Hon. Sir Robert Bay lis, knt. Lord Mayor of the City oi
London, the Hon. Mr. Justice Page, the Hon. Mr« Baron
Carter, and Mr. Serjeant Raby, Deputy-Recojder; with othei
of his Majesty's Justices of the Peace for the City of London
and County of Middlesex, at the Sessions-House, in the Old-
Bailey, May 22: SGeokgeH. a. d. 1729.*
T -.j^.. 7Lt^>.of\ i9on indicted by the name of Thomts Btmbridge,
Tuesday, May 20, 1729. ^^ ^^^^f j„ ^1^^ indictment rmitatitmiUanK)
Proclamation was made for all persons con- Bamhridge. I desire the indictment majr to
ceraed to attend. ^^^ «" La*»n» m »* >*• ,
Mr. Just. Fuge. That yon shall bare doae.
Clerk ofjfrraignt. YoU good men tliat are ^^ Holland. May it please yoilr lordship,
empannelled to enquire, &c. answer to your ^„j crentleraen of the jury,! am of ooui.
names, and save your fines. ^1 ^J, ^h^ ,,., This, gentlemen, is an ia-
^ ^ • ^^/iT' ?'u"^? ?f ™^*'^®'J?''**i"»! *-'y *»ictment agaii^t Thomas Bambrid|^, esq. Isle
hand (VV Uich he did.) Thou stondcst uh ^^^j^„ ^^ ^^|^^ ^^^^ p^i^^^ ^-^^ j,, » ^,^3^ ^
dicleiI,Acc. ,,. rr., n Mr. Robert Castell; and the indictment idi
U of Arr. How sayest thou Thomas Bam- ^^j, r^^^^ Thomas Bambridge. upon the I4lli
bridge, art thou Guilty of the felony aiid murder ^f November, had the care and custody of ito
whereoj thou standest indicteil, or Not Guilty ? prisoners in the said prison, but being k mao oi
Bambndge. Not Guiky. a cruel temper, did upon the 14th of No? emtor
CL of Arr. How wdt thou he tried ? ,^^ ^ ^^^^^ ^he said Robert Castell. asrf
Bmil^ridgc. By God and my country. ^ » y^^^ ^ j^i^j^^^.^ Corbcii's, a spunm-
U. if Arr. God send thee a good deliver- ^^^^^^ ^„j, ^^ ^^^^ ti„,g ^^^ jl,ig impriooSSt.
^^^» one Joseph White was sick of the small pti,
Thursday, May 22, 1729. and Mr. Castell never had them ; that Mr
n 1 .• 1 r • r .' Castell several times desired he might noc b(
Proc amation was made for information. ^^ ^.^^ jj,^^ h^ ^^ ^f^^i^, -^ ^e sfould catcb
C/. oj Arr. ThouUie prisoner at the bar, these j j^ ^^^j^, ^^ ,,4, j^^^|,, ^hat from the ltith<^
men that thou shalt hear called, and persoi.allv N^,,einber to the 12th of December following
appear, are to pass between our ««vere,jrn lord Bambridge forced him to continue there ; aS
thekiiigand thee, upon the tria of thy li eand ^,,^^ Castell (after his request made to Ba«<
death, therefore il thou will challenge them, j,^;^, ^^^^ j,^ J^^^^^^j jy„;|, ^1,^^ ,^^ ^„j „^
or any ot them, thy .me is to speak as ih< y ^.^^^^^ j^^„ j^^„ ^^ Bambridge. that the per
come to the book to be swoni, before they are ^^„ ^,^^ ^-^^ J^. ^^e small pox) fell sick of tli
■wurn. ' small pox, and languished under it in the sam
Then the pannel was called over, and Mr. house until December 12, and then died: there
Bambiidge challenged twenty. j;,re the indictment concludes, that the sak
ivkr. Just. Page. You have challenged the Thnmas Bauibriilge did feloniously and mali
full number allowed by law, without auy rea- cionsly murder the saiil Robert Ca8t«rll,againi
son assigued, now take care. the peace of our sovereign lord the king, hi
. crov\n and digniiy. To this indictment the de
*'^^^* feiiduut pleaded Not Guilty ; but if the fact i
George Baker, Oliver Slowcock, proved, 1 don't doubt but you will tind hia
John Goodinch, John Neincs, Guilty.
lloberl Hampshire, Thomas hayseed, Serj. C/ushire. BFy lord, and yon gentleiM
Richard Mason, ^illiam MilU, of the jury, Thomas l3ainbridge stands indicto
AV ilham Bernard, Robert tverett, ,.„^ ibe in.irdtr of Mr. Robert Castell, a prisoM
Itoger Penny, Moses Freeman. j,,^„ j^ ,,j, custofly. Gentlemen, prtMocr
CI. or Arr. Hold up thy hand. (Which he must be treated with humanity and tenifenieM
did.) You, gentlemen of the jury, look upon unless unruly, and then the gaoler has an M
the prisoner, hearken to his charge, he stands tliority to restrain tbom ; but i hose that bebw
. w ell, he has no Kuch authority over. Tbii fin
* 8ee the articLet immediately preceding son came to the Fleet the 28th of JaDe,tawi
mU feUowiBg. be shewn by tha books of Uie wardeoi end *"^
365}
Jitr the Murder of Robert Citstdl.
A. D. I72D.
[S8G
bridge had been a deputy warden some time be-
fcre. ] wish he baa not learned to treat peo-
ewHh severity. On the SOth of September
eaae to be warden in ri^bt of himself, and
Hr.Caslell had performed every thing that wai
■BBHHry ; for the liberty of Ihe rules had
ipna Mcurity, an*! to continue that liberty of
ihandfli, found additional security, security to
Uiflidactiony approfed of by the clerk of tlic
Mfiries, yet on the 14lh of ^ovembei', he was
faolfaito Corbett's ; . and I must snbmit it to
maj lord, if it is not contrary to law, as be
midm the rules, at one Mr. Underwoocrsjto
tfiybim to a spunging^^house, booses where
Ih^ make a pro[iefty of all prisoners. It is
ie datv, geiitlemen, of a gaoler, that has pri-
mmin hia custody, when he thinks they can-
B0t be continned safely in the rules, to put them
■•• priMo, and not into spunking- houses,
vberc large reckonings are rnn up upon them.
Ihsir method iv, gentlemen, lo make tlie secu-
rity oneasy , and then to tell the prisoners that
iny shall be carried into sponging- houses, till
ibcy ean work them up to a temper to pay such
MM of money Hiat they want to get from the
■happy prisoneis. Gentlemen, Mr. CastftU
vugifen to understand, that a man was ill of
iiHMfl pbx iu the same boose, and Mr. Cas-
tdhai oever had thom, and saki, *' He should
dbif he had, let me not. be carried into this
This did not take effect, Bombrklge
opoa his renewing his security, and
he was carried there, Savage went from
>M BMnbridge, and told him that Mr. Cas-
Hsw had the small pox, and that one White
I ill of them, and begged that he might be
M hsck into his lo&ings, or into the gaol.
Om would have thon^t Bambridge should
fcart had some censi£ration of him, but he
M ao aaawer to his satisfaction ; he continued
i very melanclioly till the 4lh of I>eceui-
nd then the dibteuper took him ; he sick-
wkh the same, the danger increased, and
he died on the 12th, so that it was apparenilv
Iba occasion of his death. It was Barobridgc^s
tey, when be was informed the distemper was
ia the house, to have removed him. This is
the slate •f the evidence, and as we shall be
iMe 10 prove the facts, I doubt not but you will
fiad the defendant Guilty.
Attormey Gaural, My lord, and you gen-
deaien of the jury, Thomas Bambridsfc stands
is^ieted for Ute life of an unhappy man, who
submit it whether, being mixed with actual
force, it is not murder. This is a particular
case of this prisoner, for he h&d given security
for the enioymentof the indulgence of the h-
berty of the rules, during the time he was in
those lodgings ; but for what reason does not
appear, that Bambridge ordered Corbett to take
bim out, and not to bring him into prison, but
carry him into Corbett's bouse, that will appear
to be an illegal act of imprisonment ; ror by
the statute 32nd Charles 2, it is provided, no
gaoler, or other oflScer, having prisoners in his
custody, shall carry them to any public vic-
tualling-house ; therefore Bambndge ordering
Mr. Castell to be carried to a victualling-house,
and not into the prison, is an illegal act, and the
consequence of that, I apprehend to be an ille-
gal confinement: at the time when carried
there. White being sick of the small pox, it will
appear to you, gentlemen, that Bambridge was
acquainted that the small pox was in the hovse,
(it was a contagious distemper) and that Mr,
Castell was afraid of catching it. Frequent
messages were sent to desire he might be re»
moved^, and it will appear that Mr. Castdl did
personally apply to Bambridge himself at Cor-
bett's ; after this, the sman pox being men-
tioned to be in the honse when Bambridge wat
in company with Mr. Castell, he said he never
had had them, and if he catched the contagion,
it would kill him, and desired to be removed ;
but Bambridge refused to let him go, and
continned the unlawful duress upon Castell;
he did catch the distemper, and of that distem-
per, so taken into Corbctt's, under this duress,
died. If this matter is proved, it is a point of
law, if it is not murder ; as to the fact, it roust
appear by evidence, and if my brief be true,
it will be fully matle out to you. If the gaoler
does so treat a prisoner to put him in baxard
of his life, and by such duress he dies, I sub-
mit it whether the gaolei* is not guilty ot'
murder.
Sol. Gen, We v^ill call the witnesses to
prove the fuels.
Richard Longborne sworn, Who produced •
copy of Bambridge's Patent.
SoL Gen. Where bad you it from f
Longborne. From Ihe Rolls.
SoL Gen. Is it a true copy ?
Longborne. It is a true copy.
Sol. Gen. Deliver it to tlie clerk to be read.
rs VI ith a sufficient authority, for the safe
ca^ftdy of their p: isoners, and for the securing
Ihsir pro|iertics, so tho law has taken care that
ibev ihall not put any prisoner into hard duress,
iMif the man dies, the life of the prisoner lies
liihe gaoler, and whether the person dies be-
^|io confined, or u hctlier it was tlie distemper
iHMioiied by means and by reason of his itie-
S Caress, I submit it to yuur lordship's direc-
I, to be murder; for where aotuni force
be committed, and the offender does an
hwlul act, by which death ensues, I must
VOL. XVII.
U under his custody. As the law has armed ; [which he accordingly did, and it appeared to be
— ' • ' — • ' -. - ^.^ X. - .. ... I jj^i^ jijg g^^jjj ^jj. September, in the second
year of his present majesty.]
Thomas Cotton sworn.
SoL Gen. Mr. Cotton, what officer are you
belonfring to the Fleet prison i*
Cottii. I am Clerk of the Pap«»rs.
SoL Gen. Produce tlie commitment books
of the said office, and see when Mr. Castell was
committefl prisoner.
Cotton, lie was committed the 15th of July
1723, u^ion mesne process.
2C
387]
S GEORGE 11.
Trial of Thonuu Bambridge,
Sol. Gtn. When wag be charged in exe-
•utioo i
Cotton. The 9th orNot ember foHowmg, for
180/. at the luH of Williain WariDg.
Bambridge. I do not bear Mr. Cotton, tod
therefore detire be majr raiae bia Toioe rUpoo
which the Coart admitted Mr. Bamhridg« to
come to the inner bar ;1 I mnat obaerte, my
lord, the wrilwaa brought m 1786, avd entered
in 1728.
Richard CorbettBwrom,
Sol, Gen. Mr. Corbett, what home do yon
keep? — Ccrheit. Apnblio-hooae.
Sol, Gen. How long have yon lired there?
Corbett. Eleven yeara.
Sol, Gen, Did you know Mr. Castdl waa in
your houtet^'-Corbett. Yea.
Sol. Gen. Who brought Mr. Caitdl'to your
hotiae?
Corbett. Myaelf, hia secority teat for me to
the Rainbow coffBO-bonae. -
Sol. Gen, Where waa ha before he waa car-
ried to your hooaeP
Corbett. At his own lodgings.
. Sol. Gen. Where waa that?
■ Corbett. At Mr. Underwood's in themlea
of the Fleet
• SoL Gen. Now go on.
Corbett. My lora, the aecnrity sent for me
to the Rainbow coffee-house to take up Mr.
fGa»tell; but having some respect for Mr.
Caatdl^ I sent to him to let him Know that his
■security ioleaded to surrender him, and after-
wards at fire or aix o'clock in the evening, Ihe
aecurity sent for roe again to the King'a-arma
tavern (where Mr. Castell was} to surrender
him, and I told tliem I woula not take Mr.
Castell into custody without i was paid: and
they gave me half a guinea, and then asked
me, why 1 did not lock him up? Said I, he is
my prisoner now, not yours, and I left him
tliere, and went to the judge's chambers;
whilst I was gone, a servant was sent to my
iiottse to have a fire made and a bed got ready
for Mr. Caslell.
Sol, Gen. How came he to go to your house?
"Corbett, It was at his ovrn request
Sol, Gen. How Ions did he continue there ?
Corbett. Till he die<^ which was en the 13th
of December foUowing.
Sol. Gen. Was one White there f
Corbett, Yes.
' Sol. Gen. How long?
Corbett. A considerable time. Whito had
been well about 14 daya bdbre Mr. Castell
came.
Sol. Gen, Was Bambridge there ?
Corbett, He was there several times.
Sol. Gen. Did Mr. Castell ever desire you
to gu to Mr. Bambridge ?
Corbett. He did desire me to go to Bam-
bridge, and said he was afraid, he had never
had the small- p«a, for if he had, it was when
be waa very young ; and I went to Bambridge
totoUhim thatMr.Caitell desired to go to -his
bdgii^
ML Gen. When waa this ?
Corbett. Nine or ten daya after the i
had aurrendered him.
Sol. Gem. What did Mr. Caaldl tell
aay to Mr. Bambridge ?
Corbeit. He told me to tell Mr. Baa
he' waa afraid of the ^saaall-|»ox, and tc
him to let him go to his lodffinga ; and
accordingly to Sir. Bambridge, at the
anD8» on Xindgate-hill, and did aolicit
let Mr. CaatoU go to hia lodcinga, aiMi
bridge made anawer to nae, that he oo*
let a man go, that waa charged in three
tiona, without aecnrity.
Sol. Gen. What was the reason y
Baoibridge that Mr. Castell never!
small-pox, and deaired to go to hia lod
Lndgate-bUI?
Corbett. I told Bambridge .that one
had the small-pox.
Sol. Gen. What room waa it Mr.
died in?
Corbett. I have kept a dnb in th
> where Mr. Caatell died. '
Att, Gen. When did yon first acqni
Bpmbridge with BIr. Castell's being i
house?
Corbett. The 15thof November, them
Att. Gen. What said you to Bambri
Corbett. 1 told him Mr. Castell's i
had surrendered him ; and Bambridge
Where ia he? I said, At my house; to
Bambridge answered, That was well.
Bambridge. Be pleased to ask, my
Corbett had any directions from me to b
Castell into custody.
Mr. Jnst. Page. Cerbett, answer thi
tion. — Corbett. I had not.
Bambridge. When was I admitted i
o&cef^Corbett. On the 15th of Decei
Bambridge. I desire Mr. Corbett to bi
if he was not in Court when 1 qualified
for the phce, and desire he may give
count oi ii.'-'Corbett. I was in Court.
Mr. Jnst Page. I cannot admit him
an account of what was done in Court,
must appear by the records thereof.
Bambridge. My lord, I desire Air.
may acqnauit you what part of the hoi
Castell lay in, and what part White.
Corbett. White lay in the old house
garret, and Mr. Castell in a house new!
m, on the first floor.
Mr. Just Page. Had Mr. Castell ant
any communication together ?
Corbett. I never suffened White t
down for eight weeks.
Mr. Just. Page, How high was thi
where he lay ? — Corbett, Three stories.
Mr. Baron Carter, How long was it
White went out of his chamb^ alter Mr.
was there ?
Corbett. Not till six weeks after Mr.
waa dead.
John Savage sworn.
Sol. Omu Mr. Savage, do yoa kw
[lljEDj /r lie Miafd^ tflMeH CatteU.
A.D. 1729.
[300
_^ be V ary liBB K priMDw in the FlMt f
F JhvtliwiliBjpwitbbiio.
f U on- Do yMi kMw uy thiag or liia
J was Mvtnl linn !■ oonpaii^
. luiJ he iMMMd apprefacBBVe of bu
fi^ljfjt. DidyMff* to kim to Corbelt'l 7
bmc I went to Ur. Culell Ibe Avf «fter
Lhwarrinl iheK.udba complaincil Ibat
B h**f'*i^ lie thoold Dotffet dty ruta* to go
MKt, (boDgfa it MM lerai time, lo Inuaact
At Gn. Had bv the uull-pox at that
htf—Sutagt. No.
U Gtn. HowaooDtlid j'oagotoMr.Cu-
Saigt. I trent to him igaJD in a daj or
iMMiKJ be eiLprcsdcd a gifX concern for ftar
iiht imid\[>(ii, tmd aaid if becaugbt tbal
iMnptr, it urnulil be fwy Taial lo him ; and 1
tniD Ur. B«mtiridg«, and told bimoril, and
ftiMse said be iroidd not let him go to hia
liL 6(>i. Were f 00 witb Bambridge at aoj
ioBge. I »u it (be coffee honae irilb bim,
U.G<a. Whaireqaaatdidyoamaketbca?
tstp. 1 don't rameoiber any.
iLlita. Utiw many tinwe did yon g[oto
liitriilgeP
ttMg^ Four timec I went to bim, and tbe
WMlticoe I meiitioacd Hr. Caatell'e fear of
knw the small - niix.
U Cen. Did TM BM Hr. CMtdl after he
WdK mill- pox ^
iM^e. 1 did oot aae him, in regard to iome
riaj own family irbo had nothadtbem.
JU. Gen. Mr. Cwlril waa carried to Mr.
Catnt'a ibe very da;/ be trai aarrmdered,
nt what wua il lie denreil at that time I
Mtgt. He said it «ai a great miftirtUDe
Mlihave ihe benefit of day rulea to nt^o-
Wle his biraiufsa uith hii friecda.
Alt. Gen. Whai did you first go lo Mr.
CwMI?
Saage. The next dajr aficr he was carried
tee, and it nas meDboned that Hr. Caatell
nleurul of hariog Uie tmall-jHix.
All. Ge«. Wan not that tbe Brtt day that
h via carried there F
SiBage. I am not aare it wai tbe fir«t day.
tU.Crn. How did yoa bear it f
ItR^c. r hud it from Mr. Caiiell the next
kf after, or the day after that.
.Alt. Gtn. When yoa went fint to Mr.
tMteidga from Mr. Caatell, what did you
tnagi. I did dcMre that be might hare the
1 IMI of the day rales, and Mr. Bambridge
' Nil be COuM Dot, being charged in execution
' kfta amount of OOOt.
' itt. Om. Wbendidyougo toSambridije?
fasuc I belicTe 1 went in a day or two
4>t Mr. CaateU was carried in, and then
^tiauij Ur, CaiteU'a fcara of baring tlie
^t. Cat. Did yM a^ any thing of th*
amall-poz being in tbe bvueP
Smvaft, 1 knew nothing of them.
Alt. Gen. Hoir cune yoo to talk of tha
tmall ' poa to Bambridse ?
Savage. I heard it from BIr. CaMell, that tb*
amalt-pox w«a there.
Att. Qtu. What waa the rcMon of Hr.
Caatdl'a fear, and roeaaige to Bambridge F
Savage. Hr. Caatell told me the amall-pw
iraa there at Corbett'a.
Alt. Gen. What did you tell Bambridge?
Smage. 1 told Bambrid^ that Mr. Caatell
waa fearful of haring the imal)-pox, and that
be deaiied to be carried to hii own lodging!.
Mary Cerbttt iwora.
Sen. C/mhire. When ww Ur. CaatcU
braiigbt to your faooie ?
Ura. Corbctt. The lilhorNorembcr, atta«
o'clock at night, and a drawer came freoi iba
toretn, aiid oroaght a menMire to bare a fira
made, and ■ bed prepared for Hr. Caatell.
aaii. Chethire. Where waa the mewiga
brougnt from ?
Vin. On-btll. Tbe meaaage waa ftov tho
King'a.anna larem.
Snj. ClieMrt. Did Mr. Caitell comeF
Ura. Corbcri. Yea.
Seij. Cheaire. Waa While tbereP
Hra. Corbell. Yea.
acij. Cheihire. How loi^ bad While bad tb«
■mall- pox f
Mra. Corbett. I hellers he had had th«
nnnll-pox ten day a.
Seij. Chethire. Waa there any mark of the
amall-pox remaining i
Hra. Corbtlt. He kepi tbe pcan on.
Serj. Cheihirt. How lung wai he aickr
Hra. Carbttt. Ten days-
Serj. Chtihirt. Did he ait up ?
Mrs. Corbtlt. He got up erery Jay.
Serj. Chethire. Pray, if they are a good
iorr, do they not tarn in niae day* ?
Mm. C<»-lelt. Yes.
Serj. Cbakirt. 8u that the day after the
imall-pox had turned, Mr. Caatell came into
your house : how lon(( had Mr. Cairtcli been
m your house bcfnre he had tlit imall-pox?
Mrs. Corbctt. Mr. Costell bad n>it the small-
pox tilt about eight days after he came to my
house: I waa by chance iipcaking of the
imall-jiox, and saying a persun in the bouse
had tliem, and Mr. Caatrll said he waa very
sorry for it, because Hf> had never had them.
Serj. C'lahire. Did he tiien desireany thing
of you or your hunbaad, as to apcakiog to Hr.
Bam brill ee ?
Mrs. Corbctt. Mr. Bambridge was in the
room at Ihesame lime.
Serj. CknTtire. What did Mr. CnHellsoy ?
Mrs- Corbett. He derived thnl he might go
home to hia lodt^ings with a ki^e|ier, and Bam-
bridge said in aiiKwer, he ueTer knew any ibing
of that kind done
y
S9I]
3 GEORGE IL
ofThmas
[Stt
Serj. Ckmkire. Did voa gi?c way imtaBQi?
Mm. Corbelt. 1 told him that il happciMd
when Mr. Cod way, a Mailer io Chancery, was
eMDinitUd to tha Fleet prisoo, aod there was
DO convenieocy in the prison, nor at my house,
and then Mr. Gybbon sent a keeper with him
to his lodfi^inpr*
8cij. Chahire, What did Bambridge say
lhen?-*MrH. Corbet i. He said no more.
8eij. CheMkire. During the time Mr. Castell
was at your house, were tliere any securities
gifeoP
Mrs. Carbett. Yea, I believe there were, for
Mr. Castell said his securities were oome, aod
staid only lor Codnor's coming with bonds,
and Codnor told me there was security given.
Seij. Cheshire. Do you know nothing but
what Codnor said?
Mrs. On-bett. I saw two men there, wliose
Munes 1 do not know, in order to give security .
Seri. Cheshire, Do you know that they gave
•eounty P
Mrs. Corbeti. I saw Codnor, the deputy
clerk of tite papers, go up stairs with some
papers, which Mr. Ciistell said was his bonds.
eerj. Cheshire, Did you hear Bambridge
say, or on u, that Codnor had taken security?
Mrs. Corbett, No.
Seri. Cheshire. How loug was thia after
Castell came to your house f
Mrs. Corbeit, About ten days.
Serj. Cheshire, Do you remember the time
liow long afltr lie sickened and died ?
Mrs. Cot bett. He sickened on the 4th day of
December^ and died on the 12th.
Serj. Cheshire. What did he die of P
Mrs. Corbelt. Of the small- pox.
Ait. Gen. What was the request of Mr.
Castell, when he had the conversation with
Mr. Uamhridgc st yuur house ?
Mn. Corbett, His request to Mr Bambridge
was, to be moved to his own lodgings with a
keeper.
Att, Gen, Did he ogree or refuse ?
Mrs. Corbett. His answer was, he never
knew any thing of that kind done.
Att, Gen. When was Mr. Castell first
brought into your house ?
Mrs. Corbett. On the 14th of November,
about ten o'clock at ni^ht.
Mr. Lee. Were you in company at the ta-
vern?— Mrs. Cor6r//. No.
Mr. Lee. How loner aft<^ vour husband was
gone there, did you receive tibc message about
Mr. Casteli's coming P
*Mrs. Corbett. An hour and an half.
Mr. Lee, Whobruu;:iit him to your house P
Mrs. Corbett, He came in custmly, but I
did not see him.
Mr. Lee. How long was it after that Mr.
Bambridge en me to your house ?
Mrs. Corbett. In about a week,
Mr. Lee. Did you hear Bambridge say any
thing when he was at that time at your house P
Mrs. Corbett. He did not say any thing
lomc.
Mr. Lee. Are you sure of it P
Mrs. Corbett. Yes.
Mr. Lee. White lay ill of the smaH-po^
tfaflo, was it in the same stair- case P
Mrs. Corbett. They went up the nmestaki-
case, but Mr. Castell lay in the new
ooe pair of stairs, and White in the oU
three pair of stairs.
Mr. Lee. How long was it after Mr. Cmd
had been at your house, that yea mmliawd
White's having the small-poiP
Airs. Corbett. About a week after he hat
been there, I said to Mr. Castell (Mr. Ba««
bridge being by) that there was one in tlw
house had the small- pox ; to which Mr. Cas-
tell replied, I am sorry to hear it, for I nevsr
had them.
Mr. Lee. How long had White bean B
before you happened to speak of hia iDneH Is
CastellP
Mrs. Corbett. To the best of nay icmeaa*
brance eight days.
Bambriihte (shewing a paper to Nra. Ciir>
bett) Mrs. Corbett, pray look on that pspcr.
Mrs. Corbett. I have, and remember lbs
coroner's coming to my house, but did Ml
know who he was.
Mr. Just. Page. If you intend to prodaoe ay
evidence in respect to the inquest, she is Ml
a proper person ; for that you must
the coroner himself.
Bambridge, My lord, 1 shall aobmit,
desire Mrs. Corbett may repeat what she
in relation to Mr. Conway.
Mr. Just. Page. Mrs. Corbett^ pray
that.
Mrs. Corbett. My lord, Mr. Conway was
at a friend's house on Ludgate-hill, aad llie
reason was, the gaol was very full, and there
was no room at my house, and Mr. Oybbse
sent a keeper with him to his lodging, but that
ill two nights and two days, when there was
room, he came there.
Mr. Just. Page. Do you know of your own
knowteilge, uhal house he was at ?
Mrs. Corbett, No, I do not, but that he waa
kept in the rules of the prison, with a keeper,
till he was brought to my house.
Bambridge, My lord, 1 desire she may ae*
quaint you what sort of intimacy there waa
between Mr. Castell and mvself P
Mrs. Corbttt. Mr. Bambridge used lo be at
a club at my house, where some persons met,
and among them Mr. Castell, and 1 always
thought him and Mr. Bambridge to be friendy^
together.
Bambridge. When Mr. Castell spoke abevt
enquiring after new securities, what answer did-
I inakeP
Mrs. Corbett. Tliai you would take the •■-
curity as it came.
Bambridge. When I was speaking to a ami*
tieman, v»he told me Mr. Castell waa aitt ef
the small- pox ; what did I sov P
Mrs. Corbett. You said, iU^|L you wers WT
sorry to hear it, and that Mr. Castell should triw
with you, and himself too, about the i
Jw ike Murder of Robert Casteli.
dge. When Mr. Cattell applied about
wbitdHl I aajT f
wbeii. You laid it should be done.
ige. W«8 it not esteemed a faFour, or
■Miip?— Mrs. Cm'bett. It was.
dg€, Vftre you by when BIr. CatteU
g9 to kis lodgingfa oa Lndgate-hiH?
isrAcfl. I was.
dj^e. What waa the reason of Mr.
leairiog' to go ?
irbett. I beliefe be was afraid of the
Richard Corhett again.
It Page. Mr. Corbett, yoo said that
a reeovered of the small- pox fourteen
« Bfr. Caalcli was brought to your
« yoa certain of that ?
. I hetfd so, my lord, I nerer went
him, and the nurse is here, and oan
or kirdahip better.
t. Fngi* You may go, you know no-
1
w
Hannah Stretch sworn.
s. Mrs. Stretch, were you sent Ibr to
H when he was ill ?
rsfcA. Yes.
i. When did jTOo leare White ?
reteh. Some time in November last.
I. Were yen nurse to Mr. Gastell?
rtick, 1 was.
u Do you know how Mr. Casteli
All- pox f
f€Uh. I do not.
I. How long did you stay with
rttch. Full three weeks, and in that
te had not been x)ut of bis room. I
I White 00 the Tboniilay, and was
Mr. Casteli on tlie Tuesday follow -
n. What condition was White in
left him ?
r€tch. When I left him he was out
iger, he had taken three doses of
Thomai Dawson sworn.
«. Mr. Dawson, do you remember
U's being brought into Corbett's ?
. I never saw Mr. Casteli till afler
id,
John Ifoel sworn.
I. Mr. Noel, did you know Mr. Cas-
was a prisoner at Mr. Corbett's when
iiem.
k Waa one White ill of the small-
A. D. 1729*
Jamei Codnor sworn.
[99*
Mr. White, but was in-
bad the small- pox above stairs ; I
BtlMbMse.
u P»j^ know how long White bad
9e was never snflbred* to comenbwn
SoL Gen* Mr. Codnor, were you coneemed
in the prison of tlie Fleet as a clerk P
Codnor. I did act there aa deputy clerk of
the |iapers, by the approbation of Mr. Bam-
bridge.
SoL Gen. Did yon know of any securities
given by Mr. Caatell?
Codnor. Some time in November last, in
Michaelnms term, I received orders from Mr.
Bambridge to attend Mr. Casteli as often as him
security should coum to him to complete bis
bonds, who had then three securities, and 1 re*
ceived thvee Habeas Corpus very soon one after
the other, and Mr. Casteli could not get the
bonds signed so soon till exsoution come against
him, and then the security was objected to, be-
cause a greater charge came against him.
Seij. Cheshire. What were those bonds that
had been given P
Mr. Just. Peg€f and Mr. Bar. Carter. Wt
cannot admit you to ask any questions as to
the bonds, unless you had applied to Mr. Bam-
bridge ibr them, and he had refused to deli-
ver them.
Then the Priaoner was directed to proceed in
his Defence.
Bambridge, 1 niive a great many witni
to prove my repfard for Mr. Casteli, if ocoaaion ^
but shall submit the rest to the evidence given
for the crown.
Mr. Just. Page. You may go on if yon
think tit.
Bambridge. No, my lord, I will aubmit the
whole.
Mr. Just. Page. Gentlemen of the jury, Mr.
Bambridge stands indicted for the murder of
one Mr. Casteli. If this has not been proved,
gentlemen, ^ou are not to find the man guilty.
That the evidence for the crown is not sufficient
to find him guilty, for so far from being guilty,
Mr. Casteli desired to come there, and the war*
den, if he is apprehensive that a man will run
away, then it is the duty of a warden to carry
hhn to a place of safe custody. It is said, in-
deed, that when Mr. Bambridge came to Cor-
bett's in about eight days after Mr. Casteli was
carried there, Mr. Bambridge waa by, and Mr.
Casteli expresseil his fear of having the small*
pox, and oesired to be removed to nis lodging,
but then he never asked to go into the custouy
of tlie gaol. Mrs. Corbett indeed said, thai
one of the masters in Chancery, Mr. Conwaj,
was allowed to be at his lodging two daya be-
fore he was carried to the gaol, but the reason
was, there was no room in the |^l. Gentle-
men, the gaoler must keep bis prisoners as well
as he can, for they must not be put like hogs
together. Gentlemen, here was execution
upon execution, which came to the sum of
900/. therefore it was requisite to have him in
a place of safety. Another witness sara, thai
the deputy clerk of the papers waa ordered by
Mr. Bamoridge at aU times to stteakl Bfr. Cas*
395]
3 GEORGE 11.
Trial of Tliomas Bambridge*
tell about his secarities, and so far from the
prisoner'8 bavinj^ a loaUdious intent, that there
was no quarrel, no ill nature, no difference, and
they met frequently at Corbett's at a club, and
there was no quarrel, hut always a friendship
between them. And when Bambridf^e heard
that he had the small- |)0x, he declared that he
was sorry that Mr. Castell had tliem, and that
he had trifled with himself and him about the
flecurities. Jt must a|ipear, gentlemen, to you,
that Mr. Castell was murdensd maliciously, to
find the prisoner guilty ; if it appears other-
wise, you must acquit him.
Ci ofArr. How say you, is Thomas Bam-
bridge ff uilty of the murder whereof he stands
indicted* or not KUtlty ?
Toremmi if the Jury, Not Guilty.
U|>oo this acquittal, Mary, tlie widow of Mr.
Robert Castell, brooirbt an appM^ aranst the
said Thomas Bambridge and Kichard Corbett,
ibr the murder of her husband. We shall here
give the Trial od the Appeal, which though it is
not in the order of time, yet as it relates to the
eaine fact, is proper to fuuow tlie Trial of Barn-
bridge fur the murder.
What follows tint, ii a short account of the
Proceedings previous to the IVial on the Ap-
peal, taken from Strange's Reports, voL 2,
p. 854.
HiUary Term, 3 Geo. 3.
Castell, Vld, tcr^ Babibiudob, et Cobbett.
<* The defendant Bambridffe, having been
prosecuted on the Report of the Committee of
the House of Commons, for the murder of the
plaintiif 's husband, who was a prisoner in the
Fleet, uoder tbe custody of Bambridge the
warden, and having on tbe trial been honourably
acquitted, upon the prosecutor's own evidence,
was followea with an appeal, to which Corbett,
who on the cross exammation appeared to be a
material witness for Bambridge, was now also
made an appellee ; and the writ of appeal run-
ning < quia Maria Castell vidua fecit nos secur'
* de clamore suo prosequendo per Thorn' Wag-
< staife et Poston Stracey,' contrary to the
usual form, which is, ti the appellant fecerit
not (i. e. the kiog) $ccur*y application was made
to the lord chancellor King, to supersede this
writ, upon affidavit that the appellees were both
in custody upon it, but that no security had
been given, and tbe writ reciting it as an act
done before tbe emanation of it, the sheriff had
not taken any, as he would have done if it had
been put by way of condition, ti/cccrit. And
it was argued by me (hat tbe statute of West-
minster 2, c. 1'^, giving the appellee a remedy
against the appellant, her pledges, and abettors,
it was not a matter of form, but security should
be entered into by persons of abijitv ; to which
it was answered by Mr. Attorney Uencral, that
it was sufficient it there were pledges at any
time before judgment. Sii^ T. Jones, 154. 9
Coke, Dr. HoMey 's Case. Croke Jac. 413.
" To this it was replied, that at tliat r
appellee would never have any remedy i
the pledge ; for if he was oonvided, be
be entitled to none, and if he was eoqoiti
appellant would never pray judsfUMiil,
would be an artifice to elude the law.
** Notwithstanding ail which tbe dn
would do nothing in it, but ndd, if t]
fecerit [so in Sd*ange] vo$ was wroi
might have advantage of it, and so ref
make any order.
" Upon the first day of Miohaelma
last the writ being returned, and the a|
both brought by Habeas Corpus and
over to the King's-bench, it was there
to have the pro<^edingset aside, upon tk
affidavit of there being no pledges; i
Court here were of opinion it was a tci
objection, and a foundation to supersi
writ ; but then they said, it was not i
power, who were to take the writ as thei
It, and not to hear affidavits, lo contrsS
sugp^estion of the svrit; and therefi
bavmg security, being recited as an ac
they must take it so, and could not relie^
*' Upon this the appeal wasarraigned,
forth that the appellant'j husband was
soner in the Fle^ under the custody o
bridge the warden, who made an assai
him, and contrary to his will carried bin
boose of Corbett, a victualling-houae wit
Fleet, and there imprisoned him, whi
White then lay ill of tbe small -pox, whi
tell had never had ; that the appelli
notice of this, and were desired to su£
to remove to another place in the prison
they refused, and afterwards Castell f
the distemper, and died in Corbett's
whereby tne Court concludes, the aj
were guilty of murder.
" Without staying foracopv of the c
tion, the appellees instanter pfead Not
and their plea was rehearsed in Fsem
issue joinea.
"Then it was moved, that the a|
might be bailed ; and, upon debate, th
were of opinion to bail Bambridge, f
Corbett ; and the reason they gave w
Bambridge had been ac(^uitted, which
strong presumption of innocence ; n
judge before whom he was tried, had i
tbathe was very well satisfied with the
and they said they would bail him in a
after an acquittal ; and that was the
they denied to bail in Slaughterford'i
liecause Holt, C. J. had sent out the jur
to consider whether they would stand i
verdict of acquittal ; and when they
upon it, he himself ordered the appea
** But as to Corbett, there was no fou
to bail, for they denied that it was of co
bail in an appeal ; so liambridge was bf
two |)ertion8, corpus pro corpore^ who j
in 1,000/. each. And it was agQBed, tbi
appeal by writ, on the civil sioie, two bi
are required; but bad it come on the
side by Certiorari, there must have been
Aa/T. Bamhriilge and R.
"^Tlm [( wai nl(i*rd lo fix ■ lime Tor tlie
I knl,tl«k|if«MnMii.fl«>rh-;)i>l«k««hi>n DOlicc;
' il kvinfr b}' Orieinel, (here was a necemrty
•MM lAccn days Mwcpti the Tatr. nofl Ihe
■MCT 111* Ihttrinffni. ami tliey could DM
htant tm IkP Frrtir' , liti-aiine bctni: in I^m-
' KB cnulil lir ltd lri.ll nt bur, (ihe citis^nh
K bi U: bninniit uiit ot' the city) nnil ns
■ IrJed al Nisi f cius, tliece tnuEl lia a
b Ihr latl«r rnil of Ihe Urm il nan
Il Ibe ajipdleei might be discharged,
-" nance, fet that no Veiiirt-
ttiil in Ri)p«ali, which nre
vyery ilelay is & iliBCDiili-
i Cra. Jac. 28S, Vtl*. 901, were
n ooDiiiiterBtiiin Ihe Court held,
jecnaary (o lake out the writ
■ It mntwaljle tb* aooDPSt it mi<i;ht be,
^ear Tale the day the hMK it
1 tbe appellant louk unt s Ve-
Corhctl.
A. D. r;
niie. Telle 83J (klober, nod retomablc the
35th of Ncifemlwr, nhidi the Coarl looked
upon as kn affecled delny, ninl ilifrel'nre ndmit-
Inl Ihe uther appellee, Carbeii, lo Iwil. fhejr
tnid it appeared lie nilglit have been tried (lie
sittlne "Iter the term, and Ihen upon his ac-
quittiii, be must bace been inHanttr disChargM
by the jiidife of Nisi Prim, aeufiidin.'^ lo the
stBlule 14 I). 6, r. 1.
■■ bfiih being thus nut upon bail, appeaml
on ihe nereral coutiniiance days, acooi^iDg lu
their re.co^izBDce, anil the appellant alio ep.
peared; and in Ihe beginnintrof this term the
n|>[iellec« moved for a rule Oii Hr. I'anner, tbe
nfiremho keeps the reconlsBiilicllidBailev,
to attend tlit tiial with tbe recorj of Itani-
bridge's acqiiitul ; he not beiii^ allowed a cop*
of it. But the Coitrt cefnsed to make any rule,
aud Mid, if il wac bronght it could be do cti-
Tie Trial of Thomas Bameridce, esq. and Ricuabu .Cob-
MTT, at Guildliall, Loudon, on an Appeal for the Murder
Mr. Robert Castell, before the Right Hon. the Lord Chi^
Jucttcc Raymond: 4 Geokge II. a. d. 1730.
May it pleue your lordihip,
ttleror'D ol' the jury, I nm of couti-
nk ■ppeltaols. This \s va appeal of
^Mn^l by Mnry Caslell, aj^iiin the
■H Thomat Baiiilirid^ and Hichard
W9fl tbe death of her latu husboiid.
tioD set* farth, that upon the 14th
^B^. \m (he fid year of his present ma-
ftfH TfanniaM Bambrid^ was warden
MM of ibe Fleet, aud having the cus-
IM pnwaeni, did make an Bssanll, and
IiimI anns, and malice Bforethou);ht,
ao4 oniTey him to a vidualNng-
f-dltdefeddaiil C'-orbrlt'a mnusion-
~ I Jirtain him theru till the 13(h of
pinM bit will, anil without his
(bal ime Joseph \\ hilc was then
t mill-pox. ^iid that Koirert Castell
I request
:i^icll h«d never had
>vas afraid of his
I ; not»ilh§tandinff
iwoned and detained
jTnlierlo Ihe ISthof
remain all that
r4ing; ami following arliclea ;
I. Ul,p. lltK>, and Mr. Home's Speech
■ Tnal br a lilwl, a. d. 1T7T, in this Col-
«. Hee, iw, Ko'l't ineaa of Ihe Crown,
I S.f ni aud ilarriniilon'* ObiervBtioiM
licne in the said liouie : and further sell
that on the 4lh nf December he began to groir
aick, aud languished to the I'Jili of the ssma
December, and on Ihe 12th died ; go that the
defendants, with malice aforelh ought, killed
Hobert Castell aforesaid, the hnabaud of Iha
Eftid Mary Castell. To thU declaralion ihc
dclendants have pleaded Not Guilty, but if w«
prote the facts yon nill find Ibeoi Guilty.
Mr. Reena [afterwards lord chief jnilice of
the Common Pleas.] May il please vour
lordship, and you gentlemen of the jury, I am
of counsel liir llie widow. This it an appeal of
marder, brought by liiT against the l»» ile-
fendants, Thomas llambridge and Richard
Ciirbett. Bambridge, gentlemen, is laid lo be
warden of the Fleet, and Corbelt a person that
kepi a spungiiig-house, where prisoner? were
somelimea kept. It was fnr his advantage to
have prisnnei-s brought to his bouse, in order lo
gel money of them. Mr, Castell, gentlemen,
was so unfortunate lo become a prisoner iinrter
the conimul of Bambridge, and Bambridge
was head warden. Hecame in aprisoner be-
fore Bambridge was warden, in June ITSU, anil
at Ihat lirac Mr. Huggins was warden ; and
after belni; a little time in prison, aecuriiy was
given to Mr. Hoggins for Mr. Cattell's having
tlieliberiy of the rules. Tbe lirsl action was
at the suit of one Waring, for l^Ql. though
Ihere wss only BG/. due, and so tworn ; anolher
came was fur ISf. at Ihe suit of nnnthrr plniu-
liflT, so lhat the whole charge agnintt him then
was mt. due lo Waring, and Ibl. due lo the
atiiarplaiiliffj iDd»l««iirily was given
•of
899j
4 GEORGE IL Trial of T. Bambridge and R. Corbetf, H
bh oomifH^ in ; there was a iioad eDtsre<l isto
by two tuffieirQt p^rsoni in the penal sani of
aool. oaiy . Aiier-. further char^M caoM is^mMUl
bin hi the lime of Bambrid^. We ahaJI ahew
you the time Mrbeo Jiambri'lge became warden,
which was on the 30iii of Sepiembcr, 1718, in
the 3d year of hie present majesty, then it was
be way appointed warden in hii own ri^bt,
tboagh some time before be came in his own
ri^ht ; on tlie 30th of September, he was sworn
iu, tiMti§^h on the 98th be was warden, and
acted in his own ri^ht. Gentienen, a little
Hhite afier Bambridtire came to be warden, a
snm of money 126/. Castell received; after
this money was paid to Castell, Baaibridge
knowin|^ of it, cootrlred how to get some of
this money, and Corbett was to go sbaics. It
was thi# view of iretting something from Cas-
tell, that waa the cause of the demand for far-
ther security ; and it was girca : bat some
other charges coming io, he gave a bond fur
800/. there was one of SCO/, given heiore, and
now it came to he 800,'. then there was a third
security demanded, aad given for 1,000/. so
that then the three Uud? as security to the
wafdep, were 300/. 800/. and 1,000/. these to-
gether made np the sum of 2,000/. for security
to be a true prisoner to the warden, and at that
time there was oot 400/. doe. One wonid have
thought that when the warden had 2,000/. se-
ruriiy for 400/. thi^ would hare been snffi-
cieot ; but that was not the business intended,
there was aomethiog farther to be done ; far
notwithstanding this ample securitVi Castell
was to he taken up, as they pretended, till he
^avc farther security to the wainlen, the defen-
dant liambridgc. Gcnllenien, the time of his
Lt'ing taken up was the 14th of November ; the
2Hih of September Uambridge became warden,
Mr. Cast^-il had then the liberty of the rules,
and lodged at one Mr. Underwood's in the said
liberty. Curbelt he took him up (it becomes
them to shew by u hat authority,) and was for
carrying him away ; Castell ez|M>stulated with
Corbett, and aske«l him by wliose authority
he did it.' Corijett said he did it by the di-
reclion of tlic wanlen. Gentlemen, when
be was taken up, he waa carried away from
bis lodging, contrary to his will, to the King's*
arms tavern, aud from thence in the even-
ing to Corbett's house , what authority he had,
becomes them to shew you. We say that
iirisoners are not to be confined in spungiiig-
louses without the consent of those prisoners j
tbe proper place of confinement is tbe|ifaol ; ji
there was reason for confining him, he ought
to be put into the walls of the prbon, then he
would have been in a legal confinement ; but
during the time be was at Corbett*s, he was
under an improper and illegal confinement.
The very day, gentlemen, he was taken up, he
employed a friuid of his own to go to the de-
lendant Barabridge, who went at that time be
was to be carried to Corbett's, and tohl him it
was not proper to carry bim there, for that
ftbera was a prisoner then sick, one Joseph
Whites this Whitt hH«aiih«d of tbenMll-
pox in Corbeu's hoa«. Cmdi, gentlen
never had tliem, and was under tb* grei
terror tliat ever any man oaold be, for fei
caichiog them. He scat to tbe defeni
Bambridge, that he might not be caniei
Corbett's house, and if lie did re^aire for
security, he desired to have n keeper sent i
him to his Ifid^iogs, which be wonki beat
expence of, or oiberwife into tbe walla oi
prison. Castell. gentleman, did not only i
that night, but the neat morning to Bnrobrid
house or kdguiifB, and did dnire him tn i
aider tbe ciicumsianoes, that be ncTcr bad
the snuJi-pox, and that be waa under
greatert terror of eatcbiag tbcB, and
While was «ick of theaa, and tbnt he mi
not be carried there, but tbai he migbl
cairied into the prison, or put in some o
place wl^ere ihe small- pox was not ; but I
these ft quests were absolutely refnaed, and
keens bim in Corbett's bouse, rather tbu
let him go into the gaol, or some other p
where tiie distemper wus not : then he apji
at Corbett's house to Bambridge himself,
desired he might not be kept any longei
Corbett's, bot that he might go into tbe gi
but that not being complied with, there v
frequent applications to Bambrid|^ for bis
OMval from Corbett's, but nothing oomf
viith; and, if my instructions are true,
reason why Bamlwidgc dki insist that he sb<
continue at C'Orbett's, and not go to the gac
anj otber place, was, unless^ he gave fii
bridge a sum of money : this not being c
plied with, there waa fresh security civet
fourth bond for 1,000/. more. After this
done, Castell 's friends compUmented bin
his having his liberty again ; but though
gave tliis security, yet more difficulties an
they will have a fifth bond. Mr. Castell
delayed in this manner for some time, ai
fifth bond was given in tbe penalty of 2,0
witli lour persons security. Five bonds, ^
tlemen, were entered into far Casteirs beii
true prisoner t«» the warden.
L. C. J. Raymond. What were the
bonds?
Air. Reeves, One was for 1,000/. the oi
for 2,000/. Gentlemen, thi^ last bond
given in the beginning of December ; be
kept in custody till the time of giving tbe 1
bond, which was the beginning of Deoenil
and notwithbtaniiing the fifth bond was gii
he was kept in custody three days after
last he had some apprehension ot having
liberty, and upon tlie 4th of December tl
was an order sent to his lodging, aa he
belore, to get tiiem ready ; but he was dit
pointed, having thought he had done ei
thing that was reasonable, hut it happened
fortunately, that on the 4th of Dccea
liaving been oontined in this house under
terror of that distemper, he fell ill, and on
12th of December died of that distem|)er.
say, ^ntlenien, that his death was oocnno
by biB luihiwful imprisonment, and that
hardship be sufierm was tbe oecaawa nf
4
■I«q
#11 4M AfpnAfiff MutdtT*
ArD. 17M.
[401
If ^MihiB W of tpinioa on the dr-
Mi| UmI tfab Mpreheiisimi of bin
laJTli g^noaay from him, it will be
k fWra ii oae witDCM that heard the
kttvceo CaiMdl mkI Btmbridge
« CMi^ idl the witiMH will tdl yoo, that
rtriita with Bambridge, that
of bit hie, and that he sboold
^^ BBper and die, and desired then
Mnridllotbe fAiaooor any other place,
iitfili be ii tbt place where W life was in
Mi tefcr; and his answer was, that
«MUiaailcr go into the prison, nor to
•iM|hii^widMNit8iich a swnof money ; it
yi liict Mcority as before. If we proTo
IMliieiBS, we prove the declaration,
Mmmm,%mk the defendants g«ilty.
^jfci* fiAerwards Lwd Chief JostMof
■ijv^fiiacbl. May it please your lord-
'liaijiwgsBnanieD of tne jnry, I am of
Mr tbe tppellant. This poor woman
tioM staid, in hopes to see that
^ vmIiI bare appeared in a true and
pj^|it a filmier tnal, had against one of
fc^w— It ia wbieh the other nrisoner who
■Viffn bsn, was eKaroinea as witnesr.
ViJPpynt waited with great satisfaollon,
gMMiftbst the troth of tbe ibct would
■NffMi at that tifal, and did not eom«
pMJgjjpsil, nor would she if she oould
tftMtm mAdntAmk on the fbrmer trial.
•oy prisoiicr is tried anih ac
_ the party appellant has a right to
» "^ ^<* examination into tbe fact.
wMofHtrry has preserred that right,
. f^H^^aJUi^ he was before acquitted ; and,
vi Jfinbioo, the aflkir now stands as open
I sii iNuiig bad been done. This being tbe
I iHb til antler, gentlemen, for your consi-
dnliii will bs, bow far, by tbe witnesses, we
fliaMilintisfv yoa in respeot to your ap-
pksiiw of lAe manner of her nusbaml's
Ms^gffo bis death. It bas been opened to
jH^fJMitlenien, that Mr. Castell was a pri-
■■ria tbe PteeC, and that the defendant
ImMge was acting warden in June 1728 ;
Ii drfcodant, Cerbett, was by his office a
taf, and as such was under the direction
■is wardeo. When prisoners are out upon
llialf, the tipstaff is the proper oflker for
ttif than into the Fleet, and that to be onder
iivanlcB's direction, and CJorbett was sueh a
ipriiC This Castell bemg committed in June
mB, (be was a gentleman that' lived iv good
l|Me) did procure security in July, and a
Mi wne given in tbe penalty of 900^ and
■Mhar 80& and a thinl 1,0001. Gentlemen,
ivaaont of gaol upon this security, and tbe
mitm was satisfied as to Im being abroad;
hien the 14th of November be was taken np.
h the Srd of October before this, gentlemen,
hmiiiiid a siNn of tS6/. ; on the SSnd of
^Mnr» nflcsfdinor to my instructions, this
jjtatn. Ih0 hBowkdgeef the defendant Bam-
fOUXYII.
bridge ! then came these demands of neth se^
cority ; it was very likely the means to insi4
npon hMiving money in hand or fresh security ;
notwithstanding this, open the 14th of No«
vember, Corbett came to his lodging in whidi
be then was, a piece within tbe rules, and took
Mm from thence, and carried him to the
KingVarms tavern ; there he was continued
till uie evening : that during his continttanoe
there, he sent fbr a person who will appear
here as witness, who went to the defendant
Bambridge at the desire of Castell, and he de«
sired him to aeqnaiOt Bambridge, that bOf
Ibnnd there was an intention of carrying him
to CofbetfO, and that the small -pox was there^
and he never had them, and was afraid of
catehingr them, and begged of Bambridge that
be wookl not let him oe carried there : tlie
witness accordingly went to Bambridge, and
told him of tbe request of Castell, but MatH
be came back Mr. Castell was carried to the
house of Corbett, and when he fbond Idtf
sDere*' *
My. Fazaherky, He fbund him at tbe tatefh:'
wheli he came back.
Mr. Lee. The difference, gentlemen, is tbiS|
that this person at the request of Castell went'
to Bambndp^, and upon his return (the fact Is
that he found CorbeU and Castell at tbeffim^
arms tavern) said, that upon his application
fo Ikimbridge he could get no answer, no dir
reetions that Castell should not be carried there.
Castell, his fear continued u|ion him, and thd^
same witaess went next day to Dambridge, aiDd
petitioned for the same thing, but cnuld get no
satisfaction from Bambridge. We have ac-
counts of several other applications, but with-
out answer to tbe purpose, aud particularly
otie firom Castell himself. When Bahdirid^e
came to Corbetf s house, it was that Cattelf
complained to him himself of the hardship of
being confined there, and desired Bambridge
to let him go to bis lodgings with a keeper, or
into the walls of the jc^ol, which he cliose
much rather, from the ^r he had of catching
the small- pox: the answer then given by
Bambridge to Castell was, that be should nei-^
ther go into tbe gaol (though there was room
enoogb), or go to that other place. Gentle-
men, it roust lie under the fear and ^
prehension Castell had of catching thestMrll-
poz, that he made this request. How a maft
could appear with ao much inhunumity I
can't conceive, for Bambridge himself satd,
npon a time when be was at the tavern wiih
Castell, that he never saw a man so miicb
shocked at the small- pox; notwithstanding
which, when Castell complained to him, abd
desired to be removed from Corbett's, tliis war
Bambridge's answer to him then, That be
should not go into the prison or any where
else, unless be had a sum of money fur gntupf.
Gentlemen, the whole of his charge at this
time was under 400/. He was committed in
June 1798 ; on the first of December se-
curity was found for no less than 5,300/. tli»
first bond was for 900/. the neiLlOOQiAVk^^
5{D
40S3
4 GEORGB II. Trial ^ T. Bambridge and R. Corbett,
1,000/. a fovrtli 1,000(. and the. fifth f ,000/.
Notwithfltaadiog these boode were given on
the 1st day of December, this men wee still
eontinued a iiriauner, and I must submit it to
yonr loidsbip, wjieiber he was not ooutinued
m such a maooer as to make it duress. By
the statute of 88 of Cha. 2, no man is to m
carried to a spungiug- house without his own
request. He was kept, gentlemen, in this
place even alter the fifth bond was given three
days, and on the 4tb, which was the 4tb of
Decvniber, he took the distemper. This gen-
tieuian was so much affected with the hardship
of his case, that he often complaiued of this
usage, and of Bambridge in particular ; and in
bis last words, when he lay upon his death-
1>ed, when it can hardly be imagined, that aoy
thing could eome from a man but truth, then
his constant declarations were, that his death
was owing to Bambridge.
This, gentlemen, is the nature of the case,
mnd we will beg leave to call our witnesses, and
if tliey come up to proof, it must be thought
the widow has done very right ; aud though
Corbett, when he appeared as a witness, did not
give satislaction, (I would not say it, if it was
not in my brief) yet probably the witnesses now
called will give you satisfaction why Corbett
4id not give satislaction.
Robert Heading sworn, who produced a copy
of the patent creating Thomas Bambridge war-
den of the FleeL
Mr. Heevei. Did yon examine that ?
Reading, Yes.
Mr. Reevet. Is it a true copy ?
Reading, Yes.
[Then the Clerk read so modi of the copy
of tbe patent as to prove Mr. Bambridge war-
den of the Fleet]
John Noel (deputy to the clerk of the papers)
iras sworn, and produced the commitment-
books of the Fleet prison.
Mr. Reeves. Do you know that Bambridge
-acted as warden of the Fleet prison i*
NoeL I always apprehcncM he did act.
Mr. Fazakerletf. Do you know of the com-
mitment of Mr. Casteli ?
NoeL Yes, it is in that book (which he had
before produced.)
[Then tbe Clerk tamed to, and read the en-
try in the book.]
CUrk. Decimo octavo die Junii, 1728.
HoeL There are several other entries.
CUrkf (reading again.) 180/. sworn to be
fifi/.
X. C. J. The writ was made for 180/. pe-
nalty. Read on.
CUrk. William Thomas.
L. C. J, It is necessary for me to take no-
tice of all the commitments.
Mr. Strange, To see the sums before the
|4lh of November.
Mr. Fittak^l^, Jicit ia 8M
Mr. KettUby, It is sworn to 86/. i
wanis, lor thai is sufiicient to bokl to ha
L. C. J. How much is that on tin
July f-^Cicrk. The 9ili of July is 20/.
Mr. Strange. How much tliat debt
appear.
L. C. J. Don*t go on so fast
Clerk. Die 812/.
Colvert.
L. C.J, That is another.
Clerk, Another SO/, the ISth of i
Waring 180/.
Mr. FuMakerley. That is the same.
S«irj. DarneiL The first appears U
bond.
Clerk. There is 180/. principal ; 3/. 1<
Mr. Fazakerley. Thai is the same.
CUrk. Sdrd of November, exec
the suit of Thomas f- 19/.
Mr. Strange. He is charged in e:
likewise on Colvert's.
Mr. Reeves. That is after being take
Mr. Fazakerleu, Do you know (
house? — Noel. Yes.
Mr. FaMakerUy. What kind of a hoo
Were the prisoners kept there by Bam
order P
Noel, I was there prisoner from the
October for two months, and never i
thing exacting, but very humane.
Mr. Fazakerley, Is it note public vici
house?
Noel, They have victuals and drinli
Serj. Darnell, This is very mate
will ask you a question or twu ; you
CorbeU's two months ?^Noel. Yes.
8erj. Darnell. I ask you whether yi
any exaction or oppression ?
IfoeL 1 never found any to any b
they visited Mr. Casteli with a deal ol
and humanity.'
Serj. Darnell, When were you carrie
Noel. The 23rd of October, 17S8.
L. C, J. How lon«^ did you remain t
Noel. I stayed there till tbe 19th
cember.
jL. C. J. Was this one of the houses
ways remained to the warden as pai
gaol?
Noel. My lord, I have heard so.
L, C. J. Were you at Corhett's hoiif
time Mr. Casteli was there? — Acie/ ^
L. C. J. Do you know the time of
ing his illness?
NoeL He was taken ill on the 4th of
her, and died on the 18lb.
L. C, J, Do you remember Joseith
Noel. Yes.
X. C. J, Were they in the same hoi
Noel. No, my lord ; White lay u
pair of stairs in one house, and Mr. Cm
pair of stairs in the other.
L. C. J, I ask you if White was ere
ed to come down stairs ?
Noel, I have heard express ovde
White should never come down, and
go up to bim, for fear any body ibonld >
I Appeal Jbr Murdtr.
LC J. I B
ii. Rcr'tfilii'i; la tlie b»M of
— 1, wbathcr he ever came nut of
^JbtJ. I believe lie
n; and Uien lie came to sjieak
^CJ. Was Cutall ilipre then ?
No, my lord ; I believe he
VU him tfain my rootii.
lb, Sirvage. I ilexire lie may describe the
ataitta ol'Oirbett'B bouse.
lU. There are ttrn bouie« laiJ inin one.
Jfc&rang«. Where did While lief
Ail. While lay iliree pair of flairs in one
ymm, aad Sir. Caalell uae pair of atira in the
lb. Stnnft. When did Mr. CaiLell firat
oat M Catbvil'f T
Kmt. Caviell firal came iaio Corbelt'a the
itik af Nc'eoiber.
Mr. Fvakffley. My lord, iriliey n^k ques-
woa IS a particular point, I bapu tliey willuut
ffiwiiw liMi ID diBervTil I'acla.
IrCJ. I caaoot interrupt Ihem ; you «ill
hatt an oiiponunitv to rpplv : they are entitled
»il. Khmrdidt^asielllier
XmJ. Mr, Caairll lay in one hoase, up one
(■raTMaiia. aod Wliiie in (be other, up lliree
LC.J. WbendidBIr.CaitellcoiiietoCar.
te'.r
JU. HiflitbdayorNixember.
lU.SimK*- How hiijwBi While <reUbe<
tm CaMrll came there ?
SmL He aeter bail been ilowa, but 1 btlieie
UMifhlb<
Vtt-Hlra
tIAeiiaia
Hl.Hraige. What naa llie reaaon of liis
Ofkept there f There mitl'x be other people
UMlad ODI bad ihrm. Did you eier see
fi'.it r-jiii« iiuivD Jnrin^ that time ?
:iiie came duirn iHOOr tliree great
.. Wh'iiookcareof Mr.Caalell?
I'l'il anil Ilia ipouse.
III. ,v'T jner. During t lie lime he was ill,
MlwnNiplamf
Htl. fie Deter complained for any thine,
km *aul be Mat very uneasy at bariug the
Mi.Slrvige. Wlin took care ofhlm?
IhtL Alltlicfanidy took rare of him.
Hr Siramft. Did you ever aee Bambridge
mnmavit iritb Hr.'CDXell at Corbelt'a?
Nttl. I nrtrr aaw Mr. Bamhridfie in com-
!•» wich Mr, Caaiell, but Mr. Corheit I bare.
iii Sr^^gt. Waa there a club there?
Mr. StrvHse. I>iil yon lee Itamhridife and
bMIIMtinhcratlliaielubr— Jtr<v/. No.
Hr. ilraoge. Wbfre did Cantelj lie T
Jf"! t.'iiBirll lay id a n>uiii by bimaelf; he
■ a nwiBi fliird up on pnr|in>e.
ttf, Kcfl/cAy. Do you knon w)i»lher nheli
« i'ai—tl'a wife wa* wax to, aha did con* In
A. D. 17S0.
Not!. I lia*e beard Corbett aay, that his tvl*
dow was srni to, but dul nut come.
L. C. J. Thnt i* on evidence.
Mr. KtUlebx/. Do you anjipne you abould
have &een her if Hhe had coiiK?
Noel. I should have even the woniun.
Hr. KettUba. Wliat aori of a rvom was Mr.
Casietl in i
Noel. A tery coorenient room, very near h
bi|r aa this Court.
Seij. Eyrt. How came Mr. CiKtell firat to
be brouirhi to Corheii's i
Norl. 'I'he body of Caatell waa aurrendeteil,
his seciirinr tohl me an.
L.C.J. Thalia not evidence.
Mr. Lee. Were vou Irequnilly with While f
JVwV. No-, only thai lime.
Mr. Ue W»a Mr. Caalell ukra ill belbre or
ai)er that lime ?
Noil. I cannot tell vhether be was sick be-
fore or atler.
Mr. Lre. Did you use Id be with Mr. Cat-
letl ? — Noel. Sfiinetimea.
Mr. Lee. Were you with Caatell Ihe aama
day yuutaw White.'
Noel. I cannot recoJIei-l wbetber I aaw Caa-
tell the same ilny or not.
'■' " "■ le or two stair. caaeaf
I huuses laid into one,
bui one ftsir-CBfie.
Mr. Lrt. Waa nut ibepaMageDearCDitell'a
Null. The passage comes by the head of the
Mr. Lie. MiiM not all those that go lo the
ueoexiarv-housecohy Cnateh'sruomf
NmI. 'Yes.
Captain Sinclair awnrn.
Mr. Fatakertey. Do yon know C<irbetl'a
house?
Sinclair. Upon the Uth of Decemlier, 1727—
Mr. t'uzukrrtty. Sir, do you boon thin liuiiic
of Corhetl'a?
StncUur Ye*.
Mr. taiaktrtey. V/ete you there in Hep-
tember, Oclufaer, November, Or December,
I7'i8 ?
Sinclair. I vas not brought in then, t nsi
6(W -tWDilaya at Corlieit's house.
air. Fataktrliif. How werejou used then.*
Sinclair. I must sobinil it in tlie Court, whe-
ther, as I have a ptoaBeuliiin aKaiiisi Bam-
bridi{e, what 1 may say mav notprquilite my-
sell; iihetlivr anything i aay now iiiiiy not
be prcJuilitJal lo me.
1. C. J. Il IB imiHWiihle for ne in tell yoii.
If ynu aay any thiiiK that they can make um
at, without doubl they will.
Bambrid^e. 1 deairr. my lord, the people
may be hrpi from ihewiiueases behind.
Z. C. J. If you hear any b<Kly protnpt lb*
witneaara, thej aliall be removed.
Mr. Fifmer. Wedexitetokouw whataortoT*
house Ciir bell's is.
Sinclair. I whs carried lo Mr. CurbtU'a
bouaaeMtrary wmy iodinBtiOBa; wbcD 1 wai
//
•* ^' • • * 0ti* *r, |)%«r » 1^1 \t0ff^ '
^i%
'« i'a 'av Vit^
;ii- bit
' •/; '-
I
vfaidi Mr. Bmm m
^mr^ to loMv if be nigfat |h^
>ritf» uf#!t7 ; thtn Rrent came
•w ««ii«lb#4MHi, awl I psd the I
Mr. A/rM^c. IWfcieeertlicv
thfti M mnrn m UuabrMgie kneir tta
fmMwM mm HMwy, tlicn heuiiwiJ
Kirn rr«'Rh «#-c0ritj. If be did Boi booir
m be4 mewfjr, tbei wiriMneiit wHI ■•# I
Hcnr fTM Um eatedrsimP
CV/^I. To itobm CMcU, or
be ha
t
OB an Appeal Jiir Murdef.
Whom was Ihe note piy-
iif>jshli:t(>Mr. Rotten Cas-
takrrley. And Itiii ivm altowefl in ac-
iHo^ouhy W'«oil»ar<l?— Cof/fff. Vet.
Ik. Stnuigr. You <loa*t know Itial it came
MCMrii'a hands?
OiUtt. No, any porter might go and reccir*
A. D. 1730.
[4ld
Ife tee. To whom was the aots ddirered 1
OHmI. To Mr. Casiell.
1. 1'. J. I went away with it at first u i:
U«(l kaJ mrriteii it.
Ur. Iff Hrrat waK the man that wenr ui
Xt. JJKniB^f. Prove aomelhliig or other.
Hmtridge. Ky Ion), I oeyer bad one stiil-
■t. ftrtaJbrriry. Were von present when Mr.
MM drew a bin npnn Woodward, payable to
lU.CmMlT—Bitnt Yes.
Nr. Fuiaktrtry. Do you know of any hnij
tkl wrw 10 Hamhridge, and wl)at was said ?
Brrmt. Sir, I was jealous of Mr. Casiell's
MWi—tmceg, and I naked Mr. Rainbridgr if
>>• wn any judtpnent or execiilion a^inst
Ib-Cnu-ttr' And Bambridge lild in« he was
iaMD meMte pTOcess.
Hi. F-ialerlfy. Did yon SI any time tell
Us <br Mcaainn nf Dsking that question ?
Imrf. It is very poMilile I inii;ht give him
^■tmu. Witt I cannot lie positive.
Mr. Fatvim Uy. I desire you will recotlect ;
l< ■■ frry naiiiral for you to speak to Baiu-
yt^ M ynn mentinn any Ihinj; of that
■Mj? — Brtnt. I caoaottav.
sakcrtet/. Did Bambrikt){e speak to
9n»t. I CDiinot remember that he did.
Mn tauiktrlni. Did you give him any rca-
^brovkin^ the t|netiiDn?
friU. It u possible I might tell him same
Mr. Fttaktrlftf. I desire you'll acquaint my
ImI, wbubv* Bamhriilge appeared to be assist-
^F<* Hr. Oaitcll in that affair, arhaveyou
MM M brileva him so f
Btaaf. 1 csniwtray, imlesstosatiBiy me, I
iAi4 Mr. Castell srvenil qcestionn, and Cas-
■i «id. ir I <*t>uld oak Uambridp! he would
>iiry.»e. ^
Rr. I/r, When yoo went op to Bambrldcre,
•to JtMt wttlt lo eofiulre after CDstell's clr-
f^Jsai IS, wtaW didynu say tn Bambridfrc?
knar. I kaveantweradthaliiuesiion.rcaD-
nkc positivB, to be particular I csiinol.
■r. trr. Wbm was Mr. Cuiell then ?
Bm/. I 4o Mieve Mr. Caitell wu with
iBvllieir roipnityi
Ur. fyc. vir'hettt was Bambrid^, wni he
■ ' l.-rromp«ny.'
• iinvhe was not, \ don'tretnen)-
'I iln olderconipany.
'- .. J VV M briB-tk*mne'ivoDi ?
Brent. I don'l believe he was.
L. C. J. Did you go oiii of that room in
anoiher rwrni to Bombriilgpc f
Bml. I don't liclieve either Mr. Colletl
Preston went out ul' ilie rootu, but I
aeir.
my-
Mr. Strange. Did you not go up slain ?
Brent 1 can't say whellirr it was in the
samestiir-case, or not; I did ask Bnmbridgc^
and he did aaliify me.
Mr. Straagf. Did you ask Bambriilge if it
WBSRBfelo pay Mr. Caitell any money ?
.Brent, f can't be certain, it was the whole I
■aid, prolmbly I might tell him I wns negori*-
Mr. Faiakerlty, It will follow most Dahi*
rally, thai the further bond* were demanded on
pnrpose to exiorl money. Now we shall shew,
that security was given Irom time lo lime, and
in order lo that we had given notice lo Barn-
bridge to produce the bonds.
Mr. Strnnge. Vou know the other day in tho
Court of Chancel^ it was oter- ruled.
Mr. Reevci. lierearebondsgiven as nsecu-
rily lo a private person ; we demand Ihe bonds,
andllie prooflfea aponlheu) loslicw Ihey bmfe
delivered them over.
BIr. Lee. We ought to be let into parole-
evidence, to shew that we g;tive notice to pro-
duce I hem.
Serj. Darnell. I think you are loo early.
Mr. fi<nf/un sworn.
Mr. Lte. Did vou give Bambrid^ my do-
10 deli
T Ihe 1
Yes, fhaveacnpy of ilinmy hand.
Mr. Lte. What did Bambridgesay toyonP
Bendon, Bamliridge told me he bod but ontf
in bis custody.
Mr. 5lriin£e. Wer.: not the words, thrit b«
had only one executed? — Bendun. No.
Mr. Strange. Tetl us the very words.
Bendon. tVlien 1 ^ave Bamliridge that my
paper (which he had tlien delivered to the oonn-
bbI>—
L. C. J. That paper — ii most be produced.
Mr. Lee. Wedesire to produce Ibispaper.
Bendon. Bambridgesaid, lopreventRny dis-
putes in Court, I huve hut one bond,
Mr. Strange. Who was by F
Bendon. several.
Mr. Strange. Did you know any of them f
Bendon. There waj one BeatnifF, tbal war
oneorhisseeuriij'.
Mr. Strange. Hbw many were there in aH .*
B^mdbn. Fiveorsiv.
The> Ihe Paper was given into the hotMU of
Ihe Clerk.
L. C. J. Read.
Clerk. " I do hereby give notice, (n prwTiics
nn llietrtarof this cause, sereral bonds eniereil
into by the appellant's husband, or his several'
securities, taken by you as wanleu of lh<< PfMt,
or by the Cteili Df' ihe Seeuriiien, and |ianJen'>'
larly two boni)>^, dated aboot Novemter or De-
cember, tiaa."
411J
i GEORGE IL Trial of T. Bamhridge and R. Corhett,
Mr. Lte. Now we will caH Peter Ellun.
Somebody acted in the room of HopkiDs^ who
wai Clerk of the Securities, and took a hood
wherein Peter Ellam was one of the securities.
Mr. Feter EUmn sworn.
' Mr. Beetes, Do you know what secarity
was given by Mr. Castell to the warden of the
Fleet?— £^. I do.
Mr. Reeves. Were yon one? — Ellam. Yes.
Mr. Reeves. Give an accoant of the several
securities you knew given, the tiroes when, and
the sums.
Ellam, Security was given five times, one in
July.
Mr. Reeves. When was the first ?
. Ella-H. In July, 1728.
Mr. FaMakerley. How much was the sum f
Ellam. I think 100/.
Mr. Fasakerletf. How much was the pe-
nalty of the bond ?^Ellam. I think it was tOOL
Air. Reeves. Whom was that given to ?
Ellam. It was ffiven to Hopkins.
Mr. Reeves. Who was warJen ?
Ellam. Mr. Huggins.
Mr. Reeves, Who was depots-warden ?
Ellam. 1 do not know, I believe Bambridge.
Blr. Reeves. Was there any other security be-
sides yoursell'P Whom wasthebond given by ?
Ellam. By Mr. Chambers and mvbelf.
Mr. Ruves. Pray, mind what 1 ask you.
The next bond was ^iven, how soon ?
Ellam. 1 bdieve m about four or five days.
Mr. Reeva. How much was that for?
Ellam. Eiijht hundred pounds.
Mr. Reeves. Who were put iu that?
Ellam. Mr. Curll, Mr. Chambers, and my-
self.
Mr. Reeves. Tliere was a third bond, do you
know any thing of thai ? Who was that given
by?
Ellam. It was given by Curll, myself, and I
believe Mr. Bell.
Mr. Reeves. Pray recollect yourself, do not
be under any mistake.
Ellam. Mr. Curli and myself I am positive
of.
Mr. Faxakerley. Can you be positive of a
third bond ? were there three ?
Ellam, I believe there were, and I signed
with him.
Mr. Foxakcrley. How much was the third
for ? — Ellam. The third was for 1,000/.
Mr. FaxakerUy. The third, when was that?
Ellam. I can't remember the particular time.
Mr. FaxakerUy. How lung before Mr. Cas-
tell died P — Ellam. Agreat wiiile.
Mr. Faxakerley, Was it before or afler mak-
ing the 4th bond that he was taken ill ?
Ellam, I believe it was after.
Mr. Fazakerley. How kHig after ?
Ellam. 1 believe about the beginning of the
term.
fHx.FoxQkerley. Then that mnst be in Oo«
lober.— Was there an V more?— £//aiii. Yea.
Mr. FoMokerUy, How much was that for ?
Mm. 1 think tha fourth WMftrVOOO(i
Mr. FaxakerUy. Don*t you know i
for 1,000/. f—Ellam. 1 Mieve it wa:
Mr. Fazakerley. Who entered
bond ?
Ellam. There was Mr. Curll, Mr.
myself.
Mr. Faxakerley. When was that g
Ellam. ThsLl was given the latt
November.
Mr. Faxakerley, You say that was f
Ellam. Yes.
Mr. Faxakerley. You seemed to i
thing of a fifth bond being given, how
that for T-^EUam. Two thousand po
Mr. FaxakerUy. How do you kno
Ellam. 1 was present at reading
took it to be 2,000/.
Mr. FaxakerUy. When was that g
Ellam. On the first of December.
Mr. Faxakerley. Do you believe i
5tb or 1st of December ?
Ellam. I believe it was on a Mondi
Mr. Faxakerley. Who were bouud
EUam. There was Mr. Curll, m,
and myself.
Mr. Faxakerley. What is your
name? — Ellam. John Ellam.
Mr. Faxakerley. What was the rei
these bonds being given so quick ? 1
the last bond given ?
Ellam. One was given between the
25th of November, on a Saturday n
Mr. Castell was going to bis lodgiog
two or three days we went to see him,
not find him, and they said he was at
and we went to him there.
X. C. J. When was this ? Name i
Ellam. It was about the latter en
vember, between the 26tli and the las
L, C. J. Go on.
Ellam. I said, Mr. Castell, what <
here ? Yon love a gaol better than 1
do you do here ; what is the reason c
Castell said, I do not know, it is wl
bridge pleases. I said, Mr. Castell, si
luck is worse than any body's.
Air. Strange. Was Bambridge by ?
Ellam. No.
Mr. Strange. Then you may 1
tongue.
Mr FaxakerUy. What were the bo
for?— E//am. His liberty.
Mr. Faxakerley. Had he his libei
the last bond was given ? — EUam. N
Mr. FaxakerUy. I smk you ulietbi
his liberty upon the last lK>nd'8 being
Ellam, No, he never was out after.
Mr. FaxakerUy. Do you know whi
took his sickness ?
Ellam. He first took his sickness c
day morning, the 1st of December.
Mr. Faxakerley, Were you a credi
Castell 7-^ Ellam. He owed me near !
Mr. FaxakerUy. Then >ou were hi
and creditor at ihe same time ?
EUam. I knew him to be as indi
man u any om livkigv •ad that thai
RRQ on an Appeal for Murder.
piUMiljp of eetttog an; ihin;; in a gaol, ea
tt«i<l>i El (railwIlFr to run ilie liaeard,
^aj.Dmrnrll. Uiil you npver apply lohaTO
taib'tinl u|i?— f^'fam. No.
ibf|. Uornc/J Uoyoiikoowot'lhedesigDof
(iiiMBrit)' la put liim inio prison f
lOmi. Nm (hat 1 knovr of, il waa never
fay rtatndl. Did Barabridge nerer entreal
jWM BMilniae aeruritj for liim 7
Utm. All ibat I konw relating' to Ibat mat-
l*i>itlia) Chanitiera williilrew Ins ««curily.
k^. tUmtlt What did Banilirid^ do !□
" ' a hate liim stand as one of tiis sc-
u Vhimbers withdrev hie aeeiirily.
' ' 1 don'i took upon timt to be a
Lex You must anawer the question.
£Uai. Mr. Cliapptll naa coming to me to
kO Dw that Mr. Cbambers would dcli'er him
%i ttr tkal if he neot out of The rales, bis
(••■■I ail f iced him that the aecui'ity was liable,
wd I xni along with Chambers to mm bridge,
■drbaaibcrs Idd Bainbtidg^ Ihat he wnuld
toiBnily iin luugeri upon litis Mr. Cattell
••■•rj'uiiea«y, and Cbamben upon coo'tr
Aa^bb- d^urniined not in give Dp hii secnrily.
9a^ Danttli. I atk yoii whelher Mr, Bnm-
kn^diJ iMi desire Mr. Bell to
Kiln. :tlr, Barabrld^ talked very dfilly al
Sm. boTnell. I aik jon whether Mr.
humUge appeared tu liaie a kindness fur
JOm. Bambridcre told Mr. Castell, that if
til ■naity drIiTcrcil bim up, he must go lu
k^ItanaWl. What did yon do when Cham.
tmmM be vould no) be aecurity ?
UUn. n'bvn Chamb<.-niulauie be would
Ml* MVOTHy any lon^r, it Inv upon myarlf,
Mi I wrni down to ibr lateru tbtn, and told
ttm i vaa rMotrrd to aland.
Hrj. OunMJf. I ask yna whether Mr. Bnro-
Wii|« i«ruiadr4 you tu »tatid, or said tbat be
JMl4 lie pal inm llie gifd i'
Una. It did appear (u me that Bambcidge
n* n*a to biffi.
toi-ltanull. Wbcnwaitbi*?
£Uni. Tliia wai bcturc tbe lib or Sih bonds
%i'SiKi»gt. Tbtn WDf aOer llie bonds for
■W.aBll.UOO^ Tfil us whether Mr. Caslell
|_*t aw 4e*>rv iliai a bei! miirbl be ^\ there f
I did not kimw of hi* ^.ming there.
I'niydld not «ou dciire Cor-
memwAyf—^llam. No:> ,
•. Werayoubyat anyottiertime?
^Ikm. I believe i
Serj. £>"•<- Vou
• to the day of the
tnff
sinNutember.
jou oanuoi be poiilif*
dayof IbeiDOutb.
I. I tell you fairly, tliat by the nlma-
nackil was on Honday; if Mr. Caslell died
ibal day ae'Dniuht, it was Muudav Ne'nliiitbl
befi^re that. J -«
8erj. Eyre. How long after yon executed
tbe bond, hon many days was it before be died ?
Etlam. It must be Weduetdoy or Thuraday.
8erj. Eyre. You say Alonduy tbe Ituud waa
executed?
EUam. Yea, it must be tiic first Slonday, iT
he died on the I3ib,
Scij. -Eyre. Whom were the bnoJagirpnlie.
foreP Or to whooiP Was Mr. Bainbridge
present ?
EUum, 1 never saw Bambrid^e present
when ibpy were given.
Scrj. Eyre. Do yuu know whether you were
excepted to, or remained there till belter Kcurily
waspven? — Ellam. I don't know.
Scij. Eyre. Wbowaslhere?
EUam. Codnor was there, who acted m
Seij. Eyre, Were you all preient wbeo Hie
fourth bond wns given J
Eiiam. To the best of my remembrance, we
were all present when the fourth bond waa
Serj. Eyre. What say, you is io Ibe Cnb ?
Etlani. As to ihe filth, I believe that «U Itie
persons were not then preuunt.
Serj. Eyre. You can't tell ibat either ofyotl
was excepted to ?
FMam. I know no other tbac as Bambridge
told me.
Air. Wytm. You said you were uu<
lanibeis said be would not siaud ;
you do theu ?
Etlam. I did nolhing tlicii, but went boma,
nnd next morninir rntoived to stand.
Mr. tTynit. Did you Say auy thing U> Mr.
CorbeltorBambvidftef
FMam. Nu ; when I went to Mr. Bwn-
briilae's ronio, I iveul with a design lo surren-
der bim; and wh?u I came out, seeing Mr,
Caslell in so great an agouy, I reaolicil llien
Mr, ITynti. What did Mr, Bambridgesayf
EUam. He said, he hvlirved rbnl Mr. Custell
always bebated bimstlf wlthiD boundx, and be-
lieved thai we had no reason tu CDiii|i1:iin ; aud
belicveil he would not timki! an e>c;ipe.
Mr. Wi/nn. Did be encuiirageyou toHit-
rendrr hiiuf
EUum. All that hr Eoid at this iinqe seemed
to eiicoiiraire us to Stand «" lecurily.
Mr. Wynn. Wlien Cbnmlicrs would net
tiaud, did yuu lake any couMtr-seounly I'ruiu
yjh"i. There W3sa note flrawn. but I nevu
bad It ; Mr. Curl) bad the custody of It.
Mr. Il'vnn. tVliui uan ibe Bmountf
♦15]
4 GEORGE II. Trial tfT. Bambridge and JR. Cariett
Ellam, No.
Mr.lfyin. How long before?
EUatn. I can't telftbe date; I htve it by
Die.
Mr. Tf^fi. Had von not that biU of aale
before you executed that first lecurily ?
Etlam. No.
Mr. Wynn. Was it between the fint and se-
cond?— eUum. No.
Mr. Wynn. The second and third ?
Ellam. Very likdy it might
Mr. Wynn, What month do you belieTe it
was in ? — Ellam, NuFember.
Mr. Strange. Do yon say the bill of sale was
in November?
Eiiam. I can't say particularly.
Mr. Strange. Miebt it not be before No-
yember ? — Ellam. 1 don't beliere it was.
Mr. Strange. Can you take upon yon to say
whether before or not? — Ellam. I cannot
Mr. Strange. 1 desire you to see, whether
that is your name ; look only on the name.
Ellam, I take it to be my name.
A(r. £f e. Give it to the officer.
Mr. Strange. Then you are not able to say
exactly the day when Bambridge ga^e you
encouragement not to deliver him up ; Was it
before the fourth bond was given ?
Eliam. Yes.
Mr. Strange. There was Curll ; wu he a
m^ of substance?
Ellam. Yes ; he hu been a housekeeper
these forty years.
Mr. Strange. Is his reputation to be a man
of circumstance? — Ellam, Yes.
Mr. Strange. There were Bell and others ?
Ellam. Yes.
Mr. Strange. Were they men of good cir-
comstaoces? — Ellam, Yes.
Mr. Strange. There was your brother ?
Ellam. Yes.
Mr. Strange, Were they houseekepets ?
Ellam. Yes.
Mr. Strange. Were they able to answer the
a^ms they stood bound for?
Ellam, The world thinks so.
Mr. Strange. What will you say you are
worth over and above your debts ?
Ellam. 1,000/.
Mr. Strange. When your debts are paid ?
Ellam. Tiie hist time my books were cast
ap, I was worth 1,000/.
Mr. Strange. Did yon say you were not
worth SOO/. when in company with Bam-
bridge?—£/^. No.
Mr. Lee. It is a question enough to put any
man out of countenance.
L. C. J. No man should be obliged to dis<
cpfer his own affiurs.
John Ellam awora.
Mr. Lect Yon were security for Mr. Castell
to Mr. Bamliridge, warden ot the Fleet?
J. Ellam. Yea.
Mr. Lee. When was it?
J« Ellam. In November last
Mr. £sf. Who was security with yoo?
J. Ellam. My brother Peter Ell
Curll.
Mr. Lee. What was the penalty
J. Ellam, Two thousand poundi
Mr. Strange. He only says whi
said.
L. C. J. He said it of his ovm
Mr. Lee. When was the bond e
X Ellam. I lielieve in Novembi
Mr. Lee. You can't tell positive
J. Ellam. No.
Mr. Lee. Might it not be tl
of December ?
X EUam. I can't exactly tell.
Mr. Lee. Whom was the bond <
J. Ellam, Myself and two other
first, and the other two at Gravest
Mr. Lee, Were yuu with Bami
him about it?— J. Ellam. Yen.
Mr. Lee. How came you to lie I
J. Ellam, Mr. Caslel] «eiit to ur
I would be security in the room ol
hers ; I said it was a thing 1 did
but for him I would : this was in
Mr. Castell said. Yon will be seci
Yes. And be said, I don't kiM»w h
bridge will accept of it; 1 begy«
night I told liim I would: 1
bridge would not then accept of i
Shortea was there at night, and M
sired he would go to Mr. Bawbrii
the bonds to be executed for him.
Mr. Lee, When was Mr. Castf
J, Ellam. Mr. Castell was ver
vember and December.
L. C. J. Where was this ?
J. Ellam. At Corbeti's.
Mr. Lee. Did you go to Bambr
J. EUam. Yes.
Mr. Lee. What did you say ?
J, Ellam. I asked him, tihcthc
my security sufficient in the r
Chambers ? And Mr. Bambridge i
accept of it.
Mr. Lee. Did you execute bef<
tber?
J. EUam. I believe 1 did befor
and Mr. Bell executed, 1 lielieve,
Mr. Lee. What was the sum ?
J. Ellam. Two thousand pound
Mr. Lee. Was it two thousan
you know ? Was it in Latin or Ei
J. EUam. The aUoniey read
Castell tuld me so.
Mr. Lee. Was there any persoi
beftbreyou si^ed ?
J. Ellam. There was only Mi
brocher, and myself.
Mr. Lu. 1 ask yon whether tl
more hesides you, your brother, au
J. EUam, No.
3Ir. Lee. How many names vi
the bond ?
J. Ellam. None but mine, my
Curll.
Mr. Lee. How many obligoi
know what I mean by obligors?
o« an Appeal/or Murder,
A. D. 17S0.
.J. V«.
bZiM. TImii I ;iik yoK. Hoiriutliy per-
« Umtd tT«r« tn^idai lliMe P
Tlicre was mine, my brother'
LC.J. TlnlttfisMbfrore.
Mr. hrt. Vi lien you nere seal to Hr. Bam-
ktlfibMr. Cutril *Miiiedtery ini|i>tienl to
kwt Oie liondf executed ; did he coro[i|iiiD of
Ml aOnordiaar* usage? — J.Ellam. Yes.
'nr.lct. What did he complain or?
t ZUatH. I aibed hijDi wbnt made him un-
nvtr He taid, tliey tvuuld iioltelhiiD out.
T\m I asked tiiin, wbkt was the rea«nnP
Urnuk BDaner, I iiup|iake Ihey want move
MRCTorme.
Hr.t^t. Tliey I Name them. Caa you
Ma* any badv i
J. EUam. I asked him again. Have you
fwen any oiutiey ? He said, Yes, I liaie. I
■■d. Pt^y bow mucb hate you givtii.p lie
•MdeaiMon, About ten pounds.
5(1] liarnctl. Whit hcauiil is noteTideiux,
Mr. f.iuisi:its- What hesaid upon bis death
a* sWi euniioe him next lo.
LCJ. TltatisaceonliDgtolbenalurooFthe
^Hn; whstiidedereditBBnaUuallacliis.
1^. Faiaktrla/. Bad yoit any diuiourie
ittUr. Cwwil, wfaen be lay on his deioli-
W,nbit *aj>lbcoccanoDof bis death F
LC.J. [tifieakio^ to tbe- witness.] Doq'i
hibaluirry, lake tioie, apeak out.
i. Zilim. He asked me, what I thought the
was »«ry
bii eilre-
Vc FuoicWey. When be lay ii
1'c
. C. J. W'aa he near his death ?
Rr. Fmtaktrlty. Dtil he say any thing what
*Mlba occaaion of hi* death, when in eilre*
mm}
I, tUitm. He nid upon his dying bed, that
Mc, BaMlrvidgv, in not leltitig bim go, was the
■^ ■ gfhM death.
„.J -
Ik.FatsktrUy. How long after the small'
rVoHMinit?— J.£/Aun. AdayorKro.
tb. PaaMkcrley. HowlongdidbeliteoAcr
* ■" ibout
8^^ OartulL Had he an apprelienaion of
iflif Uoralbe diitcmpar camoooi?
J: £Uaa. He «aid, it they did not lel,him out
kanid «K (no loU, tbr ll would be liis death.
~ Q. Darwtlt. Thia was before the distemper
|MtJ— 7. rJUn. Yea.
I. Dti-arll. OidfaekDowofthisifislempier
I r Was be apprehcttsiTe of this dis-
* Hm Uacli's ]lawhins's Pleas uf the
Omt, b«ik 2. Diup. V,. § S€ ; and llie Cise
. i Itcuna aiul TrnDler, vol. Ifi, p. 1.
JUL. SVM.
J. Ellam. Re said, if it
llamof I
J village of
■ny.
I be bouse
there?— J. Ellam. Ye*.
L.C.J. When was this?
Mr. FiiiakerUii. Tlie bonds will shew ; ranst
not they produce them ?
X. C. J. They must produce them, or gi»e
some reason why they don't.
Mr, Siraagt. The two first were giveu in
BIr. Hiiggins'slime, I don'lkooiv any thini; of
the other three. Baiuhndge was sworn the
16lh of Nocember, so that three were giren in
Air. Huggina's time, and twooutyin his. — I
am afraid it is a ciril action.
Mr. Xrr. The action is in a criminal cniiie.
L.C.J. What do you think this is? The
niixt action is UD part of the appeal i iliseer-
lainly a criminal cause.
Mr. Btcres. Wo p»e It up, if we don'tgiie
Nulficieat eridence after.
L. C. J. Can you go no fVirther lo fix it on
Mr. KcwH. WecanproTelliatCuitnnr acted
OS Clerk of the Securities, In bclialf of Bopkin*.
L. C. J. What was Hopkins F
Mr. Beeves. RopkiDswasClerkofthe Papers,
ond not being well, em|)loyed one' Cudtiur,
M'ho proves that Peter Ellam entered ialo se-
veral Iwnds.
L. C. J. You say he was rot sworn in UI1
the 13ib of Novemoer, the patent bears data
the 30th of October; let Johu Ellam be called
PgBl
I, be
a did you think i
Mr. Rervei. If your lordship pleases, we
will call Pvter Ellam, Ipr he executed all the
Mr. Pe/o-£i/flm called.
Mr. Reevet. Wlieu you executetl these
bonds, who was present, and assisted in belialf
ef the warden P
Ellam. Hopkins was to the (wo first, Codoor
lo the three last.
Mr. Reeves. Whom did Codnoractfor?
Elian. 1 always understood he acted for
Hopkiiia.
Mr. Rrtvtt.
EHum. 1 thouchi Hopkins.
Mr. Jleevei. What was the reason lie wo*
not there F
Eilam. It was reported he was sick.
Mr. Rtnn. Who was thebonddelivered to'
Ellam. ToCodnnr.
L. C. J. Who was allowed to he the master f
Ellam. Unm bridge.
Mr. Fataktrley. Was it so in the three last?
Ellam. I think so.
Mr. F-itaktrlf',. Was Codnur there when
the last bond was given ?
Ellam. Yes.
Serj. Darnell. What bonds do ynuapeak to*
Ellam. The third and tourlb, and 1 think
the last.
SerJ. Dornell. How many were bound >n
the last?
!lE
419]
4 GEOHGE IL Trial of T. Bambridge and R. CarheH^
EUam. MjhM, Mr. Gorll, John ElUm, and
Mr. Bdl.
Hen.Damell. What isbeeomeoTUie bonds?
Ellam. I don't know.
8«>ri. DarntlL Shoald jroo know it if yoo
ibonlil ice it aeaiD ?
Ellam, 1 bdie?e I should.
L. C. J. Had yoa any discoorse with Mr.
Bambridge about the third and fourth bonds ?
Ellam. No, not with him about any of these
bonds.
Hf.ToMakerley, When Chambers dedined
•tandiofl[ as a security, how many bonds were
giFen after ?
Ellam, 1 think it was before the third was
given up.
Then Peter Ellam withdrew, but was called
back ; and standing up again was further ex-
amined.
Mr. FuxakerUy. Recollect the time you had
the discourse with Mr. Bambridge; How
many bonds did you give after the time you
had the discourse with Mr. Bambridge P
Ellom, I think it was three ; when he came
to the third bond I ga?e aecarity, Mr. Cham-
bers having given up.
X C. J. It don't appear whom thebonds were
accepted by, or whom delivered to.
Mr. Harbin sworn.
Mr. Filmer. Who acted as Clerk of the 8e-
«nrities to the Warden of the Fleet whoi Hop-
4^nswasill?
Harbin, f don't know of my own knowledgey
koi as Hopkins told me.
Mr. Edwards sworn.
Mr. Reeves: Do you know Hopkins f
Edwards, Yes.
>^. Reeves. What was his office?
Edwards. Clerk of the Inquiries, as I believe.
Mr. Reeves. Who was Clerk of the Se-
4;iirities f^^Edwards. Hopkins, I bdieve.
Mr. Reeves. Do you know Codnor ?
Edwards,^ Yes.
Mr. Reeva. Do yoa know that he acted for
Hopkins?
Edwards. I was not privy to such things.
Daniel Hopkins sworn.
Mr. Reeves. I think you were employed by
Mr. Bambridge to take securities for the li-
berty of the rules ? — Hopkins. Yea,
Mr. RMvet. In Itovembcr and December
1798, did yoa employ any one else ?
Hopkins. InNovemberl was taken ill, about
the 30th ; and in my illness Codnor^ who acted
In the office, I believe officiated in my office.
Mr. Reeves. Who did he deliver them to ? To
you? — Hopkim. No.
Mr. ReeveM. Who then ?
Hopkins. I believe to Mr. Bambridge.
Mr. Reeves, Did he account for any bonds to
Hopkins. No ; but be save me a roemo-
fandum, that bonds were tma Ibr Mr. Ltnd-
BanandMr. CiitdL
Mr. Reeves. Do yon believe Mi
appomted him ?
Hopkins. Yes ; nobody else cou
Mr. Reeves. You believe he accc
Bambridge? — Hopkins. Yes.
Mr. Strange. You are Clerk of tl
Hopkins. Yes.
Mr. Strange. Don't you go to
the securities ?
H<^kins. Yes ; and I have take
Mr. Strange. Don't the Clerk o
take bonds ? — Hopkins. Not in ro'
Mr, Strange. Is it not the (
Papers business ?—lf(ig9^<. No.
Mr. Strange. What is yonr busi
Hopkins. Our business is, to ini
circumstances of the sureties bef
them.
Serj. Eyre. Is it not usual to t
bene esse f-^Hopkins. Yes.
Seij. Eyre. Suppose you enqui
persons' cireumstances, if vou fi
sufficient do yon take them r— flbj
8aj. DameU. If any body gel
and escapes, who takes them up ?
Hofhns. The tipstaff.
8er|. Domell. If the security
any longer, but will surrender tb
tipstaff carries them to prison ?
Hopkins. Yes, if they desire it ;
own bouses, if they desire it.
8eq. Darnell. Was it asaal to ti
without the securt^ W'^^ abug
iorreDder him ? — Hopkins. Somcl
Sen. Darnell, Could he do it i
Mr. Castell ?
Hopkins. I don't know he could
Ser|. Darnell, i desire he may i
whfllher he had any directions froi
bridge to enquire afler this Mr.
Castell?
Hopkins. There was a bond
month of July fbr 200/. |»enaltY,
of 800/. and I enquired afler the
the direction of Mr. Bambridge, a
bridge excepted to the security
fbr Uiat bond, and Mr. Castell wai
get other.
Sen. Darnell. Did you report i
tieni?'^ Hopkins. Yes.
Serj. Darnell. Was Bambridg(
Hopkins. Yes, in July.
Mr. Strange. I ask you whet
observed any avertreness to these ]
to the first bond ? — Hopkins. Nev<
Mr. Strange. Had you any d
the third bond ?
Hopkins. I had directions to
one Lilly*
Mr. Strange. Did you enqu
Cux\\?—'Hopkiju. Not then.
Mr. Strange. Afler the two to
quire afler the security ? — Hopki
Mr. Strange. Did you ever
Curll?--Hupibiw. Yes.
Mr. Strange. Did you report h
Hopkint, Yes.
on an Appeal/or Murder.
A. D. 173a
F. Straue. Hnr many Imnds wu lie ia f
' lint. He wu io the Iwo tirat, onil the
_r. Str«i>^f. Hare you IliCHclHO bii(i>l(?
Ibptiu. No, I deliiered them in to the
■tb M Ike cotnmillceof (be Houieot' Com-
MBt, and hatt nil had lli«m aiiMe.
Ht. Slraa^t. Ho you know Mr. Cnrbctt'R i
tbpiini. Vn.
Ht. Sirauge. Do ;ou know wliat priaoiien
|«|*»re? — Hopkini. Yw.
Mb.Slran^c. Wbalis (he price urn dinner F
AyJhm. One shilling, and I think it werlh it.
Hr. Strmitgt. n'bile Mr. Coiiell was there,
Ij) Oiilyuiterei
of any ifi u&aze ?
-" *■ there a
fbiB w
ftipliKi, ?>« ^ there are some persona
haj iMeTTD|»t ma in gi'ing my evidence, ud
«y I defcna to be hangetT
Sat). Dmmtll. Do you know the faouae where
fflMl»wu7— JfouAini. Ym.
alhrmU. boyouknowthebousenhrre
wtMf—Hopkim. No.
Mr. i'ataUrlcg. The witness iwore that
Ihmhi »i1|i.i md he had one hood.
L. C. J. BeitdoQ did say so, for he had ap-
|U to BaiDbcidge, and Barobridge Mid, to
fMIMI ili*]niles, lie bad hut ODe.
9my DiirntU. Two were deiiiered to Mr.
SmilaB. lbs other Iwo before the committee i
ftij chaired Mr. Bambridge iritli hiving
Wm^ aad Bambiidge said, to preieul diaputes,
tm» m hot one. II' Hopkins could nut act,
... . _. i, that Bambridge
tmi la faa*c. There was an act made last
iMM of uriiament, under the seTereat
mdtj. that Hambridge should delirer up all
Wlaiklaiul papers. If he ehoold prudoce
fc Hfclr bottd. aiid il appears that be did not
MlV np all bonds, be would be liable to the
L C. J. You are only to deliver the bondii in
■Itau; you must coosider, here are three
ta^UllM byCodoorj if one of these bunds
CMMtB yMsr possession, thai don't imply the
■>hcii>(iay'(iur hands i aito the single bond,
iliiMba left lio the jury, lor if Codnor is ibe
Unw be put id the office, and has delivered
to«c band, won't it lie implied that ha has
fetwhar?
Hag. Darmelt. There has been an anplicalioD
" ' r enart for Ibu hooks of the office
(he opinion of the Court (hat the
eM be deliiered up.
'. That excuse will pot do her* ;
taken from you we cam
I do cwifess they a
itde.
y say the bonds were ifiven
, ii{ you must produce ttie bonds,
« iTthal i» bur or not.
^aj. DtrmtU. >V« arc desirous to Uy all
k*)«waca«; tttOK bands ncri only tak»
de itnt ttie, only till the security was enquired
atter, according to Ibe method of the thing ;
these sre nut ihsolule, and tlial was the reasoD
wby these people were em)uired a<\er.
L C.J. Thenthei|uesunni», Whuherlhey
should not go on?
Mr, Underwood swora.
Mr. Hmp«. Whcredo youlive?
Underwood. Upon Liidgsle-hill.
Air. Rates. In tbe rules of the FleetF
Vadtnaood. Yrs.
DIr. Recvei. Dtd Mr. Castell lodge at ytnir
house r — Uadtmood. Vps.
Mr. Reewi. When did lie lire there ?
Uadii^'ood. Last July was twelve muntlK.
Mt.Retvri. llowloiigJidhecotitinuetherer
Uideraood. I believe till the middle of No-
Mr. Rena. Do yoo know wbal happened
to him then ?
Vndentond. Cnrbett Came to my house tbnl
morning to fetch him away, but be ivas not at
home ; atid when he came in, I told Mr. Cas-
tell he had been there ; and Mr. C'lsiell desired
me, if be carae again, not to tell him be wai at
home, and he went to h>ck himself up ; then
Corbeit came up.
Mr. Hemes. Did be express any oonoeni ?
Vndcrxood. Yet; he spoke to me, and said,
IfCorbett came as^in he would lock himself ujh
Mr. Strange. Did you hear any thing of bia
security being uneasy f — Underwood. No.
Hr. Strange. Did you never bear Mr. Ca9-
tell say the security was uneasy .'
Undermood, No.
Mt.Strangc. Did Corbeltusefaim uncivilly F
Underwood. No.
Mr. Siruagt. What did Corbettsay ?
Underaiood. He spoke lu me, and aaked
where he was, and iben went up.
Then Daniet Hopkin
Mr. Hftret. Were yot
house? — Hopkini. Yes.
JfopfclJW, V(
as again called.
I Mr. Underwood's
You heard the discourse that
I was in Williams's room on
. I lived up two pair of stairs,
end Mr. Caatell three pair of stairs ; Williams,
Castdl, and I were standing together, Corbrtt
came down stairs ; there was Mr. Castell with
ns; he said, Mr. Castell, ymi must go with
me, your security has Burrendeted you ; Mr.
Caatell desired he might not go; Cotbetl SHiil
he must, be had the wiuileii's union, and most
obey them.
Mr. RttTCt. Who was warden ?
Hopkins, Mr. Dnmbridg*.
Mr. Rtnei. Did not Castell desire him to
let him slay i*
Hopkini. Yea; CorbeU said, be wished he
could ; aud said several other civil cxprcsiiiins.
Mr, Strange. Do you know tliu lime when
Hr, Barobridge was sworn?
Bopkim. 1 Lclitvn it waa lb* lU)i of No-
veoiber.
^ I. Bam6ridge and R. Corbeit, \
>«w
Sazoge fwnrn.
.bi'i
I
HopJ
!•:
Mr.
Mr. r»
berty ^'
Mr. i
1728, <i!
Hopk
the 20tli
In the ofl.
Mr. Ji«
•• <- I
I
••k«
into If r
mm
,«n» ^ M%^ • iSIIIUW
2 vn«2a
CO
Mir ir &
I* V9
lit V9Q.
*. ■«*'
^^ aot jeiurs he
3^ ., •?« icard
Ves.
jaKT*^: did
7 .,.v'tfa:iiiy
^•*. iMreto
you
?— 7i
Mr Jit
Hopkin
Mr.iit't
>,
you:
Hopkins.
randum, th..
nan aod Mi
Mr. I«^. Did joa at any time see Mr.
'iiil afl^r he was in custody with Corhett i
Sizage. Frequeotly.
Ht. Lee. When did you first see him ?
St:T€i^e, The day he was taken in cust
Kr. Lee, Where did you first see liim i
&2vage, I can't say whether at his ow u
nigs, or at the Kiiif^'s-Arms taFeru.
>lr. Lee, Did Mr. Castell make any re
:o you ?
Savage. Mr, Castell desired I would
Mr. Bambridirr, ior that he understood hi
coing to close confinement, and that he a
bended the ^mall pox was there ; and said
it was Tery fatal to his family, and if he ca:
it; 4ie should die ; and said, it would be i
10 him in his affairs.
Mr. Lee. When was this?
Savage. This was the first day he was t
ill custody, buforo he went to Corbett's. i
Mr. Banibridgc this, and told him the a|
hension Mr. Cnstell was under of catch in|
small pox, and desired he might be indul^
fro to his own lod|(insf, and that be would
the expence of havinur a kee|)er there. Ac(
iog'ly I went to Mr. Bambrid^, but he
rae no express answer.
Mr. Lee. Did yon acquaint Mr. fiambi
with what Mr. Castell said f — Savage. Ye
Mr. Lee. What did he do alWr P
Savage. I went upon the same messag
Bambridge, three, four, or five times, I be
four or five, and never had any answer til
last time ; then Mr. Bamhridi^e said, he
char^-ed with a pretty (leal of money, am
must take care of his office.
Mr. Lee. Did you mention any things ol
small pox to TJanihridjre ? ^Savage. Yw.
Mr. Iscr. Did he say any thinj^ as to thi
Savage. No.
Mr. Fazaktrh y. Do you remember any
versation at the Kinj^'s-Arms tavern ?
Savage. Vcs, tliat was some time af\er.
Mr. ±\i2af:criri/. How long ?
Sai'uge. A little before he was taken ill ol
small pox.
I^lr. Fuznkerhy, How longf before ?
Savage. About a week or tour days. I
in company ivith some other ^eiitlVmrn,
Bambnd(»% rame in, ninl saiil he had l)< i n '
Mr. Castell, and that nn unUicky accident
happened; and thnt >irs. Corheti had n
tioneil the dans^or th*- man %\a« in that w.
of the i^m.ili pox, : nd Ijambridt^e told us,
Mr. CasU'l! v» ruicd to be much aiieiii>tl, a
gave hiui \ast uneasine<:s.
L. C. J. Was this before Mr. (;astell
taken ill ?
Savage. I was at snppc^r in the K'np^'i?-.^
tavern, in a room behind the luir ; then Ij
bridi^re came in and told us, tliai he liaci bet'
Corbett*s house, anil l?u' licli\ wifv hud ut
tonately mentioniMl tin* pirsoirs haviii«»>
small pox ; antl that >Ir. Castell seemo(
turn pale ; and it (jravo Inni pain ig be«
Castell IK) much thockwU.
OH an Appeal far Murder.
^Itt.&at*. Wulhittlieftr«rilayofhiibe-
iHidDHMMijr
MM. Vm, 1 Uk« it to be M.
■Littvna. YoDHT you weatlhe next day
t|Mr — Savagt. I belie*e It was.
Ik. Ream. Did you ga by order of Mr.
Wb«( did Mr. Caslelldeaire you
mmf lb* Dfxt day to Mr. Bnmbridge !
Smuc. The »«ry tam* thing.
Ifr. JUnv*. Waa lltrre anj itiitig mentioned
Mtatks place Mr. Cutell desired to be eu-
ntiur
tuaft. It «u lo hb own lodirmi;.
Mr. lUrzn. \Vk there my other place
Mr. fUtvtt. Wereibere any eniteavoiirs used
if MlwhiiJgc to tube liim oul of thai ]i1uce ?
imwr. N«, I do notkooir it,
Mr. JUmt. IIbw many linHM did you ^?
4nwr. Too, titree, or lour timea.
Mr. KfllUty. I tbink he mid, it woiilil h« an
fcWH ■ii.ncf , aod that he curd not lo gu to
ttaMi'. r— Suuflgtf. Yes.
Mr. Strange. I ask you, whether you snid il
•Mlbcftni day, or nul, before he trenttn Cor-
i«f»t—&n>agt. No.
Mr. Sirmec. Did you see him there f
&»<- Vr..
Ib.^ranjc. How wu his uaag«7
Inair. I dkl not beartirm cotnptairi.
■r. Sininge. Did you ^ wi<h any other rt-
n^ (tuB that h« migbt go back to Wn Indg-
it^^vagr. That was the reifnest by me.
M. tUera. Wbai was the answer the InsI
tMJW wmi to Bamlnidge; wbelber he did
■H nj h> was in execution f
fay. f nnnnt take upon me to say.
LC.J. I think what you said, was, that it
WkHMgrnified hy Corbelt.tbat Mr. Cattell
Mi la ht locked up ibere, and il bad been irg-
aM U biai tlial iho ainatl oox was ibere ?
b=«(. Ye>.
LC.J. What place waa Hat.'
Imtfa. I can't he R«taia whether at the
liw^'AniM. or his lo'l^inss.
l(. Ijtr. IM yon kno'v the ilay he Tell ill ?
. le
Mr. Xrr
't tell.
Wa« he well before fae went ii
Whro he wrnt Inlo Corbell's, t
be well tlren T
A.D. 1730. [4«
Mr. tit. How iTiiny limes did you go t
Sirncf. Four or five times.
BIr. Xee. Uow lao|; berureBainhridn-eume
io into the Rin^c-Arnis tavern, berore ihaidia-
course hagijiened ?
Sarage. I believe the same day.
Bamindgt' I detire a qiiesliuu may be aabed
the witness, wbelher lie cams in relalion to
some suits or Mr. Caslell ?
Mr. Lee. We irosi oppose (hat.
L. C. J. It is between parly and parly, hia
couusel must aek r|ues lions.
Savage. I did umlentund there waas ne^v*
datioD uarried un by Oamlirldge lor Mr. Cas-
lell, between him and ihe printer ; and Mr.
Bambridge did tell me, that be had made ao
end of it for 40/. or SOl. bat 1 know aotbing
ItTr. Strange. Did ttnt you come about om
CotII? — Savage. I know uoUiiog of it.
Mr. Strange. Did you come lo Bambridg*
an to Mr. CuHI'ii being' securiiy f
Savage. 1 believe I did, awl aaid he Itat a
proper man for security, being a man of aub-
5Aorluawoni.
Mr. Lee. Did you go to Mr. CasleJI when at
Corlwlt'B ?
Shorlh. 1 went to Mr. Caslell at Corbelt'a,
the morning sricr he was in custody.
Mr. Let. What passed ?
ShorlU. Mr. Caslell said, he had beet) very
ill used by his creditors, and beliered they had
been in combinatiuD, aud had comliined wiib
Ur. Bam bridge.
Mr Strange. Were yon freqacnlly willi Ht.
Castell while he was at Corbeti'a house t
SAortit. Yes.
ilr. Strange. Ouringihe time you were there,
what manner was be used in?
S/iortu. Mr. Bambridge behaied louarda
him very gentlemanlike, so did Mr. Coibelt-
Mr. ^Iron^e. Did you ever hcarbiiacon)-
plaiu ? — Shorta. No.
Hir. Strange. When did you tail see dim f
Shorlis. A day ortwo before he died.
Mr. Strange. Did be complain of Mr. Cor-
belt's ill usage iheii ?
Shorlis. I believe he had every thing he
warned IV»m Corbrlt's.
Mr. IFynn. Did be complain of any haidahif
in being t^arried to Mr. Corbelt'a bouse t
ShortU. Yes.
Mr. R-yan. Who did he complaiii «
CTadiIors,or Mr. Bambridge?
L. C. J. That is not evidence.
sin o^ii^^
e <TOm Mr.
JoAn Surrigt sworn.
Mr, Lee. Did you go at any ti
CnUtH to Mr, BarobrriTge?
Surrige. I went two or threr lime*.
Mr. Lft. When did VDti see him ?
Sumgt. I wcDl in Iiie month of November.
Mr. Lte. WballimeP
Surrige. Aliout foorteen days utbtlii
4f71
4 GEORGE 11. Trial qf T. Bambridge and R. Corhett, [4S$
Mr. Lee. That wai about the middle of No-
Tember ; it was before he was taken ill.— Did
you see him atCorbett'sP— iSttrr^e. Yes.
Mr. Lee, When you went to Mr. Bambridge,
what did you f^o with ?
Surrige, Two lelteni.
Mr. Lee. Did you go by word of mouth ?
Surrige, No.
Mr. Lee. Had you any answer to these let-
ters ? Did youdeliTor them to Mr. Bambridge ?
Did he pre any answer?
Surrtge. Ue said, he would wait upon Mr.
Castell.
Mr. JReeve$. Had you any discourse, con-
eeming his confinement, with Mr. Bambridge?
Surrige, No»
Thomas Goodman sworn.
Mr. Beeves. Were you at any time at Mr.
Corbett's, when Mr. Eiambridge and Mr. Cas-
tell were together?
Goodman. I was confined a prisoner there.
Mr. Reeves. Did you remember any con? er-
sation between them two?
Goodman. 1 was a prisoner there, and Mr*
Bambridge came into Corbett's, and sent for
Mr. Castell down stairs ; and Castell said to
Mr. Bambridge, he had sent to him two or
three times, and never could hare the happi-
ness to see him ; Bambridge said he was ?ery
sorry for that ; and Mr. Castell desuwl of Mr.
Bambridge either to go into the house, or the
rales, for the distemper raged there.
BIr. Reeves. What de yoo mean by the
house? To go into the gaol? Tell the dis-
course that happened ; what did Mr. Castell
aay?
Goodman. Mr. Castell said, tlie distemper
raged in the house, and the distemper would be
the death of him ; and Bambridge made an-
swer, that be should neither go into the house,
nor into the rules, unless he gare him snch a
sum of money.
Mr. Reeves. Where were you when you
heard this discourse ?
Goodman. I was at the bar, askipg for some
bread and cheese.
Mr. Lee. When Mr. Bambridge said he
should not j;o into the house, or into the rules,
what dicWMr. Castell sav '
Goodfnan. That he had giren security se-
Teral times, and fresh bail, and that he would
not giro any more.
3Ir. Reeres. Did Mr. Bambridge deny that ?
Goodman, No, I did not hear it.
Mr. Reeves. Where did Bambridge order
him to be put?
Goodman, He then ordered Corbett to put
him into the tap-room, and then he went up.
Mr. Reeves. How long did he stay there ?
Goodman- About four minutes.
L. C. J. What time of the year was this?
Goodman. About the monto of November.
Mr. Reeves, Did Castell complain of any ill-
ness?
Goodman. The next momiiig he came down,
and nid to Mr. Corbett he wai my illy and de«
sired a fire to be made in his room, and I be-
lieve he never came down aeain.
Mr. Reeves. How often did Mr. Castell re-
peat this to Mr. Bambridge ?
Goodman. He desired two or throe times to
CO into the ^ol, or to the other place ; ui
Bambridge said he should not go to eitkr,
without a sum of money.
Mr. Reeves. What sum was it ?
Goodman. I did not hear the sum^
Mr. Reeves. Where was this ?
Goodman. At the bar ; I was standing al
the bar asking for bread and cheese.
Serj. Darnell. How long were you there?
Goodman. Four or five minutes.
Seri. DamelL How long were yon a prisoner?
Goodman, Four or five months.
Serj. DamelL Dkl you see them together?
Goodman. No, it was imposaible for ine to
see them, the door was shut.
Serj. Darnell. Did you never give any teslip
mony before ? — Goodman. No.
Serj. Darnell. When were yon discbaifcdf
Goodman. By the act of parliament.
Mr* KeUlebjf. How came it yon wen asC
examined before ?
Goodman, 1 don't know.
Mr. KeUleby. Did yon make any dedaratkn
of this matter to any body ?
Goodiman. I gave this account to icfcnl,
particularly to Mr. Houghton.
Mr.KeUleby. Did you hear of this trial F
Goodman, I heard something of it.
Mr. Keitlelnf. Are you subpcsnaed ?
Goodman, 1 am not subpoenaed.
Mr. Kettleby. Where have yon been saM
you was dischaiged.
Goodman. In my business.
Mr. Kettleby. What business ?
Goodman. A printer.
Bambridge, My lord, there is a person, Mr.
Botwright, stands behind the evidence to
prompt them, I desire he may be removed from
that place.
L, C, J, Let him go to the other aide.
Sutton sworn.
Mr. Lee. Did you know Mr. Castell f
Mrs. Sutton, Yes.
Mr. Lee, Did you know he had the small*
pox?
Mrs. Sutton. Yes; Mr. Coriiett sent for
me, and desired me to look after one White, but
I could not, and Mr. Castell was standing tberCf
and said he was afraid of the small -pox, and
said that he was afraid that I had, them, eli-
serving something like a pimple upon my faosk
Mr. Lee. Was there any thing upon yoor
faqe?
Mrs. Sutton. No, nothing but what is now.
Mr. Reeves. Was that after be was in custody
at Corbett 's ?
Mrs. Sutton. He was not a prisoner tl
there.
Mr. Reeves, Were you in the -lionaa wl
Mr. Cabell was ill ?
UttuSuitom. I Ml up the nfgbt ha diaL
■ I 'umt
m^4 ■ fc Tim
on an Appeal Jut Murder.
IbiHtna. Can ynu tell litp. day of tbe
Hfc!— M«,5iiJi(m. I caDooi tell.
t, Bttrr*. Do you kiiott the innnlli ?
-L SittUi. 1 ciu't U-ll, it was before
Ur. Faiakfrlry. niiat ilistemperilid h« die
•r*— Mn. .Soffun. TLe 8ina1I-|>ox.
— ItVeitbriKik (worn.
Itt, FutaJitrley. Whudoyou know of Mr.
CiMdr* Uat of bating tbe amiJI-pox ?
FatktwA. I bare bteo Mr. Cuslcll'a neigb-
Wwiuty yean, sod unea beard tiim ssyi
Mbc It** rcry roucli afraid of the Biiiim-[>uX'
■ Kilbury Bworo.
Ht. Ptiakrrleg. Do youkDowtbatBboulIbc
kik *t tiofvmber, anu so tor > inoolb, from
lfctllu»etill Deceoiber lul, tbere were cui|i(y
MHiiDlbanriwio?
iAurj. \e», there was, one of tbe most
Nr. Faiakerle^, Where wu jl ?
Kilfarj. Up uoe pur of •lain, No. IG, n*int-
MeL
Hr. F*x»ierley. Visa there any other room T
KiAwy. Yes, one where iLey kept the
Mr. Faiaktrley. tVcre Ibere other boutcs
•kM Oiere HFre rooms as convenient ?
JU«rt. I don't know of any.
L C. /. What lime were the rornns empty f
CAuj. From the tatter end of October, till
tl «li w Mb of December.
B,wfA sworn.
1*. Fuokerhy. You hear the question,
iMtr tram tbe middle of November till tbe
la>p«n«f December, any rooms conrenient
wwanplj?
tttlk. There were the aaine two nwmi as
ftimm
ikrrleg. How longwerelhey empty
Mr. Fasaktrlry. Do^ou know any thing of
■ Wnc that there was room ia?
Baolk. t d«a't know any thing of that.
CUa.
Xr. Fatekrrley. Do yon know that about
"--"■"iof Nofffluber, uae, and -"
ir, ibere was aoy
s Corbelt's, to put pri-
Mr. Strange. Wera not tbe u
work f — Cleaver. No.
Mr. Ftuoktrky. We aball call w
SerJ. Darnell. I am couniel for the defro-
danla. Tbe gentlemen on the oiberiidc*ay,
that this is an appeaJ that is brought, witb'a
good dealof commeudatiou of Ihe widutv ; Ihat
she was fullotring the murder of her husband ;
and that ihe traced it with a full coiiriuliOD,
that Ibough one liad been acquitted fur it, vel
ulie should now convict ttuih, lliAelbre aba
waited for thn opporluoity of laying it before
theCoart.
I shall not take notice what passed upon Ibit
occasion, but observe to you, gentleoieo, what
is alleged in the appeal : tbe apjieul baa charg-
ed, that these tivu dcfendouta ilid nitb force
and arms make au assauh, and did feloniouslr
take and imprison Robert t. astell, without bis
consent and against bis will, in the house of
Richard Corbetl ; that there they did imprison
him; and that in that house there wasooe Jo-
■eph White then ill of tbe smull-pox, a distemper
the said Caslell was ^atly afraid of; and b<
believed he should die if he had ibem.
That being there conGned, be caught the
small-pox and died.
1 cannot but say, it is something new, and
an uucommon accusation of murder ; hut so lar
I'll go, that if people do wickedly, tbey should
answer for it
There is first a great deal to be considered.
Ag Id tbe first point, nbether he was legally
taken and imprisoned.'' I tbiak there is noeti.
deuce as to that but Hopkins. He told you he
was present, and saw Corbett come to Under-
wooo's, and told him hia bail hail surrendered
bim.Bnd luld him be must carry him away lit
prison, and told him he was sorry for it.
This is tbe aniaivfully and felanioualy car-
rying him there.
He lolJ you be bad tbe wanlen's authority ;
as he was his agent and tipstafT, he was pul lo
lake him ; be must take him, and did it bv tlie
aulbority of the warden, as he was his uScer;
lliia was the general authority : this is the tin-
gle evidence of the first taking the man. t
submit it to your lordship's direction, that there
is no^iing unlawful in this.
The next is, Ihat be was carried lo Uie hotiat
where Whitewossickof thetniall-pox. What
is the evidence as lo that!' Every b«dy that
jeaksBsluthat, said, tbe small -jiox wit ovit
ten days ; if it was over ten days, when is be
kaid lo be sick? Wlien islhesmall-poi toendi*
What is tlie consequence of hia coming there r
Tbathe dreaded tbe distemper, caught it ami
died. That tbe catching it was from tbe 14ili
of Norember, till tbe 4th of December, which
waaoear three weeks; this comes out to W a
■sooth afler the man had the amall-|>ox. Jl
was lawful when he was cavried ibctc.
iSl]
4 GEORGE IL Trial of T. Bambridge and R. Corbdt, [«ai
As it if UDKMMiible to suppose the time of
catching the tinsll-pox, an; not yon to judge ?
It is so general a distennper, there is haraij one
in a hnndrifd in this town, that has not caught
it. Is it because he had the sinaH-poz there,
that they had a felonious intent f Weretbare
all these circumstances to make it appear? This
is the circumstance that must be lell to ^ou,
Iha general credit that Mr. Bamhridge reoeif ed
from ahnost all the witnesses, that he treated
him civUiy, and that ereo Mr. Bambridge did
busioess for hiss, till it come to Goodman, and
Goodman gives an odd account to you, if you
caa believe iL He says, he stood at the bar
(which in a public-house is very noisy) ; and
says, that he heard a talk through the door
which was shut, and he took it to oe Mr. Cas-
teli's voice ; and he said he desired to have the
liberty of the rules, for the distemper raged in
the house.
For a man to hear this at the bar, when the
door was shut, and that this should be a secret
so long, is very extraordinary.
I must observe to you, gentlemen, that Good-
man was a priKoner ; andif this evidenee had
lieen thought material, the vigihmce and in-
dnstry used to find him out (and very com-
memMble it was), it was impossible to think it
should be undiscovered, where so vigihmt an
•nouiry was made.
This is the only thing that shews any ini-
quity in Bambridge. If ere is a man that wants
to so into the liberty of the rules ; is a gasler
toKthim? IfaGBolerdesiresDumey, I doaot
know that it is illegal ; it was alWr bis bonds
were given up ; it would have turned upon his
own bead if he had gone away ; he mubt have
been answerable.
lie obaig«s him with So monstrous an im-
probability (it is impossible to think he said it),
that we must submit it, whether any credit can
be given to sucli evidence.
1 chuse to mention "Nil, Bambridge ; but 1 &m
more particularly concerned for Mr. Corbett.
They have called several witoesses, and thev
say Mr. Corbett used him very well. And th»
is alleged to be evidence, that where witnesses
are wanting, the man's declaration upon his
death -bed is evidence ; because that it may iw
done without the privity of any one else ; and
that a man at that time would 'have regard to
himself in what he said. What was this de-
claration ? If I die, I lay my death to Bam-
bridge ; but he is not certain that the man did
Jay 3ie misfortuue of being brought into prison
to Bambridge ; but if he did die by catching it
from White, or being confiueil in a close air,
if I die the prison is Uie occasion of my death,
and eoBsequently the keeper. Is there any
oottsaqucoce can be drawn, tliat there was a
fslonioQs intent? There is nothing at all from
Corbett.
But as tliej have taken op a good deal of
tiMe in shewing that it was a cnme carrying
him toCorbaU'Sy thoivh I apprehend it is not
■atflrialy wa shall iaa£B it nuui thatit was no
crimatMl,
I mnst take notice as to this, that at wts in*
sin uated from circumstanoes. They have cn«
deavoored to shew Mr. Castell received \%bL
and alleged, that this money was to be got
from him; this money iras the means of his
being used ill. When they came to prove this,
they only sliewed that a note was drawn upon
Woodward. If he hail any money, might bs
not have paid it to his creilitors ?
The next tiling I shall take notice of is. asfti
the bonds. Probably the bonds that had ben
giren to Mr. Huggins were delivered to Mr.
Bambridge. Mr. Bambridge said he bad bat
one ; and if it was token in the manner even
said by their witoesses, it did not appear in any
manner oppressive; for Chambm said he
would surrender him.
When Peter Ellam was examined, he WH
asked, whether Bambridge said, that he wooM
not have them surreuder him ? He made an*
swer, that he said something to that efieet|
and it was said, that these bonds were given dk
bene use ; therefore the warden was to have a
reasonable time to enquire into the securities;
so it may be likewise taken by the prcnm*
stance, that he desired to have a keeper vitli
him, and he would pay for it. What hsffsr^
does the ^oler run, if two or three perspos
come to him to ask the liberties of the rolc%
and he gives it them, and the men escape? Is
not he to answer for them ? If that waa tlw
case, a keeper, which is thought to be a bene-
flcial office, would be soon ruined by adi s(
good-nature.
As to the case, it stands thus: Mr.CasliB
was first commilUed the 18th of June, UM^
and it' is customary to bring prisoners first IS
tills bouse. Hopkins says, it is common fiir
prisoners to desire to be there, for they huf
better convenience to transact what buamcss M
to be done, than to trouble their friends to gi
into the gaol. Honkins says, that it was cnsla*
mary ; and from this house he did give secuiity
and went to his lodgings, aud continued thsrp
till his security would not stand.
When this man was brought in, hehappansA
to be an intimato acquaintance with one M^
Vaoderbauk, who s^ioke himself, and got sfr*
veral others to speak to Mr. Baqfibiuga in
his behalf. He will give you an account sf
the very creditors coming to surrender bte|
and it is nothing but a man's eredilon oft
come ; and these people will shew with whsl
fiivonr Mr. Bambrulge treated him, and thri
he desired Mr. Bamhridge to assist him in Mb
afibirs.
Gentlemen, he was removal from CorfaslMl
to his khlgings, and continued there till his
curity surrendered him; and we shall. al
you, that Mr. Oastell sent to Mr. Corboltib* j
that this room might he made convenient aor '
fit for him ; which sUikps out the first part of iki \
appeal ; and if we prove he desired to be tiienk
that strikes out the whole ; thereiiBce there iHl
be an end of the w hole. The nam is caniedtt|
the house, but the communication bitwil
them was op two pair of stairs : fiirtba wi
h
4:tsj
on (in Appeal Jor Murder,
A. D. 1730.
r*34
En •>;, Wliftc Uy np three pair of nlaii
•oe lioiiM, uiil Cutcll lay up one pair uf i
ID asvlhcr. Was lliere sDy mure ilauger Ijing
bni lluui IB llie next Luiur? TI>e wiioesan
■Ji White never canie down, and uoboily in-
■Mrd Uiat CaitctI wciil an ; tie niusl hare hem
• iHitman if lie tliil. Wbea we alietT vou thai
Wcamc ibervil LUown dexir«, anu liad the
W •H>1 ImlillDH Hi hi* o*n desire, we inuGl sa j
Ova i\ta dittf niper waa llie riailation ol' God,
ml onr to liiin a> to oilier |>eople.
Ktiiiall call a ^ood mony of'ilie people who
^N bis »e<.'urily. lu prote, thai aa eniin
flf} avru eni|iiired arier, (bey were admitted
rnntWirn, afler the last bond was ptf
b Willi lia*e gone alioul bin bniiriesH if he
*mM i anil I bat buud was^iveo tfr &fne<
mJ ikTrvlife in the power ot'llie warileii to let
Ibra ill ai uDl. ne will coll our ivjlnessei,
ii'liSm wubowlonK tThite had been well be-
< irllcametliere; that he had taken
I liyiiici hut I'or I'rarof any acci-
^ ilipre ivere oiher priwaerB in Iht:
<M.I not let bim come (tnwn. Tim,
pvilrmni. wc (ball be ilile la prove by lefernl
«M^aci 1 wliii'b il' we do, you will lind (1i
fJMcra NdI (iuiliy.
Sa^ Eirrr. HIv \otA, and ymx geolkmen of
•tivry.1 am orcouiiid ol l)>e same aide. T
M art fa over thn wbulo ca«e ; hul only oh-
•r*l bi jou, thai the gentlemen on the uther
Mc avTv c<wiM:ioi» Ihal they liu'l no poiiilivs
IbcTvfiiTC ibey have arlt'ully gone ahout
\ BIT tfaat Mr. Cutell hod 135/. jiniJ
■*i4 uavioif (hia mouey, Air. Baitibridge
", and a)o»equcnlly waa niakiii^ use
lOr* lo extort the mnoey froiD him.
« fiu- ahnri, In that lli^y called
m miy prnted that a note wits A
r. Wood Iran), payable to bim or bearer;
'4 Mt appear that Banibridge bad aoy
I.
> M aamher eTidence, one Goodman,
'id ibu Sir. Ilimbridgt! had a riew to
( of the money ) one wonid have
~ tl lie ehnold (la
* exceedingly
!rCD«tell gives is, that
m gtTCD.acd he would fjive nu more.
r, (mtlcBien. when this happened;
'er, wh«u all the aecurilies had been
, that tliii witness
ir «o well. lie wa«Bl
and the diii>rihul ;
n iiiatrncted Id soy, that il
I tu ht-ar wliat any penou cays
1 Imt, tlut alanda on the ouUide uf
How then stands this? If these bond*
wereexFCUied on ibe end, this niau fell tick
on (he 3d, and (his uue bund was only
deliver^ OT«r (o the principal, as a bond de
Une etse.
What I should apprehend wes necfasarv for
them to pnxluce, were ihe facts in ihe declani-
lioD, that be was tiireihly la ken away out of hi*
lodgings, and carried to Corbetl's house : they
admit them ta prisoners ; and so far from
force, that aomeof ihesareties, on the I4(b of
Kovember, said, (hat they would ktand nv
longer, and desired Mr. Caslell lo belakco care
of.
Thry Bay it was rery wrong* (o carry hiia la
■ spunging-house; ■ riciualliag-houHe It is,
but il don't appear lobe a spuny ing-hunse ;
erery genlleman is uied accurding to bis cir-
cumstances ; they pay one shilling lor their
dinner, which is rery reasonable, and Hoiibins
said well deserves it. We say it is exceedingly
lawful (0 put prisoners there; it is lawful
an'l as lawful as his own lodgings, and any
place in ibe libeily of the rnles is lawful. Tins
It not all ; he went tirst to the tavern, ani) bit
sertaot bespoke a room, end had Ibe very room
he bespoke ; and we apprehend, Corbett had a
lawful authority lo carry bim there.
There is another fact they b>vea11e^e<!, I
must beg leave to take notice of; that WkiM
was sick at tills very lime, and in this very
h 01196.
These two charges are neccsury to be
proved ; but how have they proved ihem ? It
B|i^ears (bat (besc were two distinct buuaes,
two distinci stair-cases; aud, iu my judgment,
1 apprehend, appear to be two houses, udI one.
As lo White's beine sick althat llnie, ilap-
Eesrs he Wat not sicC, and we ifaall shew be
ad laken ihree purges,
Il is not only oecessaiT for them In prove
that this man was sick al the time Custetl came
there, and that he was unlawfully carried there,
but 11 is necessary lu prove that this sickness
was infectious; but Castell, on Ihe contrary,
did nol come there till he was well.
Doet it not appear that While lay np
three pair of stairs, and was enjiHiii'il nol to
come out of bis room, 'nd that he con tinned
there, as Noel «ald, all tue time? Where was
Castell? In one pair uf stairs in Ihe new
home. How can you inagine any Infedion to
come from the garret down lo Mr. Ctikli.'!! in
the onepair of stairs room P Therefore, It was
impossible lo Imagine that distemper wuk so
Here is a man visitnl with ibe small-pox,
and says, "Pray let me not co to gaol, but
lei me go lo my uwa lodging*;" the bail sur-
render him, beuauie he was nol sole al ihe
place where he lodged ; therefore, it wai very
ridiculous for him lo ask to gu (o his lu<tgiDg,
which was uiireuwi liable,
As to the pi
«liii
'1 think lliey were his friends iu liurl ; for
lhei«mea, who l>«lbrewereiltinklng al Ibe bar
of this house, designed il alioukl be au.
. 4F
435]
4 6E0RG£ IL JTrial of T. Bambridge and R. Curhclt, [436
I must beg^ leaFe to make one observation :
•oppose there were some of the prisoners had
tbesinall-pox, and aprisooer comes to the gaoler,
and says, Here istne smatl-pox in a garret, I
desire to 'go into the liberty ; 1 don't see how it
can be granted, for it is impossible for that or
any other gaoler, if a oontagiovs distemper
comes into it, and the well prisoners desire to
go out, he should five tbem the liberty : if
criminals should be let out, it is Tery plain, in
that case, the gaoler must answer for them ;
80 I apprehend it would be in civil cases:
therefore 1 must conclude with saving, that
my clients have done nothing at all but what
is humane and right.
Mr. Kettlehy. My lord, I am counsel of the
same side ; and we will call our witnesses.
— CAop/^ sworn.
Mr. Kettlehy, Were yon present on the 14th
Af November, or at any other time, when Mr.
Castell's security came to BIr. Bambridge?
Chappel. Mr. Chambers came and said, he
was determined to stand security for Mr. Cas*
tell no longer ; and Peter Ellam and Curl! the
same.
Mr. Kcttlchy. What did they say to Ram-
bridge?
ChappeL That they g^e him power to take
him up.
Mr. Keltkhy. Where was this ?
ChappeL At Bell Savage yard.
Mr. Kettlehy. What dicf Bambridge say in
answer ?
Chappel, He believed lliey were secure, and
eouid not imagine the renson of their withdraw-
injr their serurity.
Mr. Kettlehy, What did they say to that ?
Chappel, Chambers seemed willing, but
Curll would not.
Mr. Kcttlebi/, What resolulidn was taken
upon that?
Chappel, lie persuaded Ellam to consent,
and iiotliing more was done then ; and we left
Ca<«tcll and Bambridge together.
Mr. Kettlcby, What time was this ?
ChappeL 1 don't know the day.
Mr. KctlU'bif. W liut month was it in ?
ChappeL In November.
Mr. Kcttlebi/. The beginning, middle, or
latter end ?
ChappeL I cannot tell ; by a line sent to
Mr. ", the attorney, it will appear.
Mr. Kettlehy, How long before he was car-
ried to Corbett's house?
Chappel* Three weeks or a month.
Mr. kettlehy. Do you know anv discourse
tliat happenecl between them a little before he
went to Corbett's house ?
Chappel. Mr. Chambers came to Mr. Bam-
bridge, aod told him, he would be security no
longer.
Vir Kettlehy. How near the time he was
carried' to Corbdt's ?
ChmpfeL The next noming.
Mr. Ketlleby. Give an account wbil passed
the. day belure he went te Corbeit'i.
ChappeL Chambers was twice with Mr.
Bambiidgc ; and the first time Mr. Bambridge
desired Air. Cast ell might not be surrendered;
Mr. Chambers waited two or three days, and
then came to Mr. Bambridge again, to let him
know he would surrender liim, and said be
would be his security no longer; and Mr.
Bambridge said, if he would deliver him np,bs
must go to the tipstaff's; then Chamben
went to one Corbett, and Corbett said, he miMt
have a fee ; then Chambers gave him bis fee;
and Chambers said, he was at the King's Anu.
About an hour after I saw Corbett, Chamben
and Castell togetlier.
Mr. Kettlehy. What did you see done f
ChappeL That is all 1 know.
Mr. kettlehy. Did not you gu to the Kuig*k
Arms tavern ? — ChappeL No.
Mr. Kettlehy. Did you hear the security say,
they would complain to the judges about h?
ChappeL Mr. ^-^ an attorney, was tlicfe.
BIr. kettlehy. What did the altomey isy ?
Chappel. I don't know.
Mr. Kettlehy. Did they direct him to take
him up ? Whom did Chambers speak to?
ChappeL To Mr. Bambridge.
Mr. kettkhy. To do what?
Chappel, Tu take Mr. Castell in cnstody,
fur he would be security no longer ; anddcBi^
ed that he would take him in custody.
Mr. Strange. What did Mr. Bambridge tell
him was necessary to be done ?
Chappel. Bambridjre said he miistempkja
tipKiatl'.
Mr. Strange. What did Mr. Chambers do is
Corbett?
Chqppel. He sent to Corbett to the coflec-
house, and Corbett said, he must have a fee.
Mr. Strange. When w«is this ?
ChappeL Over ni^rht.
Mr. Strange, Did Chambers threaten him ?
ChappeL No.
Mr, Strange. What did he say ?
ChappeL He said something about giving a
fee and Corbett went to the Kiu<;'s Arms, and
said, he could not find him.
Mr. ReeTCt First of all Ellam seemed un-
easy, but afWrwanls was not ; Did Peter £llaia
concern himself a tier wards?
ChappeL Yes, he sent a letter to Mr. SootL
Mr. llcevct. I ask you, whether Ellam did
not consent to rontiuuo before he was takife
up? — ChappeL Yrs.
Mr. Reevci. Did Curll, before Mr. CasitU
was taken up ?
Chappel. I don't know of that.
Mr. Reeret, You don't know of any othcnF
ChappeL No.
Mr. Lee. How come you to be so innch oo»
cemed?
Chappel, I was to secure Ellam and myaalft
I was so much conreriied, that he and 1 Will
bound for tliree-fbuiihs ul' 1,000/.
Mr. Lee. Who went with you to Bambri%i
the first time ?
ChajfpeL I went along the first tioM li
Bambridge with Peter Ellam aud CiilL
437}
tm an Afipealfor Murder.
A. D. 1730.
[438
Mr. Lu. 1\*iih what intent did you go ?
OiMpptL 1 went uiili Peter Ellam and Curll
■n intent to iSeliTer Rlr. Castell up, for I
hid given security to Ellam to indeiumfy liim
a half part.
Ifr. Lte. To indeiDDify liim ! Did Ellam de-
daelbeo?
Cktpnei, Re aeemed inclinable to continue.
Mr. Lee, Were you present w hen Bambridge
Mihi Diiist cro to the tipsuff's?
Gkne/. Yes.
Ir. Lee. Was he acquainted with Corbett?
Ckmei. 1 don*i know.
Nr. Lee, Was there any body mentioned at
ibeliBe when you were with Bambridge ?
CImppeL 1 can*t charge my memory with
Sir. Lee, At this time wlien you talked
ahaot Um tipsUff, was Ellam and Curll there ?
Omppel No.
Mr. tiumkerley. Pray what bond was that
ynm talked of, that you were security in ?
CUppeL 1 don't hear.
Mr. Patmkerley. Was there any talk then
villi Bambridge how much the bond was for f
Omfi, No.
Mr. Ftaakeriey. What was the bond for?
Ckmel. I think 1,000/.
lb,Sirange, You say, upon Bambridge's
irinssition, that Ellam was mduced to stand f
CieneL Yes.
Ur.ainnge, Was Curll the same?
Gkmel. Yes.
Mr.Sirange. When was that?
CSbne/. That was the first time.
Ih.Sirange. When uasthe last lime?
L C J. i don't find that you tixed these
C ft ambers sworn.
Mr. Strange. You were security for Air.
QmA\?^Ckambers. Yes.
Mr, Sirmnge, Give an account what you did
kichtiontoibai? j
Ckamken. I begged of Mr. Chappel, he ',
kitiag business every day in town, to apply to
Mr. Bambridge, lo let him know that 1 w(»uld
htNcnriiy no longer ; but having long had an
■lioMcy with Mr. Bambridge, Bambridge de-
■sdne Id continue sifcurity eiffht days longer ;
■d tald me, that White at the King's Arms
Iwm bad given a note. I said I was deter-
lo deliver him up. Mr. Bambridge
I was Terv safe, and desired I would con-
i; be had been the instrument of my being
' % and he would not deceive me ; if he
_ Ti Ibere was any danger, he would advise
M by letter. I came to Mr. Castell from time
li line ; be told me, he liad other securities
ntijt and it would be no inconvenience to
!■• 1 raine to tell him two or three times I
mM not stand, and found he had nobody
Wfif ; and then went lo Mr. Bambridge, and
him at the lodge about seven or eight
at night, and toM him I was come de-
lo deliver Mr. Castell up; upon
If jott will deUrcr him op. yeu
must. I asked him which way to proceed ?
He said, I must get a tipstaff. 1 asked him,
where there was a tipstaff P He said, there
was oneCorbett. 1 asked him, what I must
give him? He said six-and«eiglit-nence. I
went accordingly to Corbett, and told him Mr.
Castell was at the King's Arms tavern, and I
would give him half a guinea to secure him.
Mr. Cm-bett went to the King's Arms, came
back, and said he could not find him ; then I
said, I would be in town ; and 1 lay at the
Bell-Savage inn ; then 1 came the next morn-
ing, and sent to Corbett's, who came in his
gown and slippers; and Corbett said^ ho
wished he had not s^t notice of our intentkm ;
and said he would go to his lodgings; and
said, he believed there he should find him :
then Corbett came, and said he was at his
house; and 1 gave Corbett half a guinea;
and I went to Mr. Castell at Corbett's, and he
saki, he ihanked me for my civility ; and said,
he believed it was not an act of my own ; and
I said it was. As you are going abroad, do
not think 1 use you ill. He said. No, 1 don't
believe it was your own act I said, I)on't de-
ceive yourself, it is.
Mr. Strange, Did Mr. Bambridge persoado
you at first to be security ? — UamSers. Yes.
Mr. Strange. Mr. Castell made no manner
of objection to his being at Corbett's, but
thanked you ^^-^Chamben, Yes.
Mr. Strange. About what time was this P
Chambcrt. About the middle of November.
Mr. Stranee. ^Vas this afler be was sur-
rendered?— Chambers. Yes.
Mr. Strange. Did he cuniplain of being at
Corbett's house then ? — Chambers No.
Mr. Strange. Were you at the King's Arms
the day he was taken ? — Chambers. No.
Mr. Strange. Were yuu with Mr. Bam-
bridge ?
Chambers, I sent up to him, and that I was
come by the securities' appointment ; and he
sent word again, he had nothing to do with
him, till the security had surrendered him.
Air. Strange, Did Mr. Bambridge at any
time expostulate with you, why you surren-
dered him ?
Chambers. I told Mr. Bambridge, I heard
he had an invitation to go abroad with lord
Londonderry.
Mr. Strange. What did Mr. Bambridge say,
to lead you to that answer, to say that Mr.
Castell was going abroad ?
Chambers. No, I did not say he was going
abroad.
Mr. Strange. Upon the whole, you say that
Air. Bambridge persuaded you to stand ?
Chambers. Yes.
Mr. Strange, Did be persuade you to stand P
Chambers. Yes.
Batnbridge, Mv lord, I desire the wit-
ness may be asked, whether he did not say
that Mr. Castell was going abroad.
L. C. J, Mr. Bambridge, let your counsel
ask the question.
Mr. Strange, What did you say P
439]
4 G£0 RGB 11. Trial tif T. Bamhrid^t and ILCorbiii,
t44»
Chavtbtrt, 1 Mid 1 h«anl a rurtioar ; I tru
inrormed lie wu i[<iiii^ atinud.
Hr. Strange. 1 dtifire lie may be uked, if
be wu not b>\d thU he wu going tbromd with
loTil UinJoDilcrry.
L. C- J. Had any hodj udd you be vu
gmiiK alirood nilh lord Lvodouderry ?
CAmniert. No, I did DOtMrnndCT him upon
that mncuuDt.
Ur. Strange. What wm the re«l
jour fuimdering him f
Chai/iberi. I wai infornied that he had made
two morLgagea ol' bia aatala, oiie to wj
in-law.
Hr. Strange. You aaid yoa were informeil
be wsa eointf abroad ? — CHambert. Ye*.
Hr. Strange. Did any body, an enemy to
Um, penuade yau tu aurrendsr hi ~ '
Chambtrt. No,
Hr. Strange. Did not yon know of that
Bortgoge UyDuraoB-iiHaw before then F
C/iamberi. 'No.
Joteph Faint aworu.
Seij. Darnell. Give an account of whalyon
know of ihe itirrendering Mr, Cailell.
ViiiTu. Mr. Chaoiliera came iereral Lmei
to my cufTee-house, and aiked when 1 uw
Mr. Corbett ? The &tU lime, I taid I bad mit
Men hi m in two or three dayi; and then he
camp again, and the third lime Corbett cante
by, and my aerTant wid, There is Mr. Corbett ;
and he asked Air. Curbetl, whether he knew
where Mr. Caalell was? Corbett (aid Xo. Then
Chambfn desired him lofind him.
Serj. Darnell. What did Mr. ChamberB ny
to Mr. CorbeltP Re|)«al it again.
Vaiat. He said, When did yoj aee Mr.
Caslpll? Ml'. Cnibi'tt laid, ~
Corbel t asked.
: irilh him,
.is your butinessi' Charo-
will be lecurity no lunger,
and will surrender him, for I hear he it gnrng
abroad with the Inrd Londonderrv. Then
Corbett went awar to look for Mr. Csiteli, but
I know no more of it, but heard he iraa carried
to Corbett'i.
Seij. Darnell. Did DOl Air. Chainben
Ibreaien Cortieit J
Fain*. lie said I mnit lose the debt, and
if you ilo not see and gKt him, I will move
the Court againsl you, and make you pay
the debt, for I will aLand security no longer.
Serj. Darnell. Do you know any thing of
Mr. Castell's sending to Corbetl'ii?
Faint. No.
Thomai Woodgtr awom.
Serj. Darnell. iDo yon know any thinr of
Mr. Castell's going to CortieU'a bouse, when
it wxs, and ot wlioae desire?
Woodyer. Thcnightbexeutfromthe King's
Arms latem, I wis li rawer there. Mr. Cahletl
orderr^ me ti> go or aend to Hr. CurtieU'a
b«iM>, in onler hi* mom to he got reaily.
a^. Darnell. Was that the night be waa
atTiei uCortMl^r— Wmlycr. Vm.
Serj. Darnell. It is said Corbett leak Urn
againat hn will ? — Wooiyer. Ican'tsaj.
8erj. Darnell. ^Vhen yna reoHied that
mesaage, was Corbett there ?
Wtndyer. 1 can't be poiitlre.
Srij. DarnelL Did ynu go ?
Woadyer. I sent one down.
Beij. iJaraef^ By whose directiOMr
Woodyer. By Mr. CaMdl's.
Seij. DarwilL What time f
Woodier. About eight or nine o'dodr.
Serj. Darnrll. What day J
Wooiyer. I don't know.
Serj. Dameli. What month F
Wnodyer. 1 believe Norember.
Serj. £gr€. Waa it the laat time ?
Woodyer, 1 believe it was ; I never law Hr.
Cailell alter,
8e^. Eyre. How long did Hr. CaataU My
at your bousr ?
Woodfer. Mr. Caatell waa there three at
four houm.
Serj. Eyre. When did Corbett eonetaldn
him up Y
Woodyer. That same night, 1 belien.
Serj. El/re. Diil Corbett bring him la jvat
house r — Woodyer. No.
Mr. .Strange. Who was in company vbm
he came in F — Woodyer. I don't know.
Hr. Slrna^r. UidCorbciteomein with him F
Wootlyr. No.
Mr. Strange. Did Corbett go wilb bin
awav? — Woodyer. Vea.
Air. Slrange. Did Mr. Castell shew any Mr
willingnfHs to g» ? — Woodyer. I did not bar.
Mr. Strange. What time of the night did
he first come P
Woodyer, Some time in the divk of the
evening.
Mr. Faiakcrlry. He wtu taken in the mam>
ing at Underwooil's.
Mr. Xee. Were yon in Ihe houaa when Mr.
Castell firet came from Hr. Underwood'a t
L. C. J. I don't lake the time he was lake*
from Underwood's lo be in the mnming.
Mr. Faiakerley. Kn yiHi sura it was the
IMhofNoTOmber F^iriWyer. No.
Mr. Ffiiakerlry. What was it he KidF Te
get bia room ready ? — Woodyer. Yea.
Mr. Strange, there wereaheetatobeakH'
jtcodyer. Ves, there were.
Jukn Down* sworn.
Mr. Strange. In November the IStfa, wm*
you a servant to Mr. Corbett t — DemiUt Yaa.
Hr. Slrange. Do you remember My ia«>
sage itiat was sent t
Dawn*. Yes, that a bed should be got ready
for Mr. Casiell.
Mr. Strange. Had he been at any iMuse be-
fore upon Ihe surrender of his beilF
DoKnt. No.
Mr. Strange. Where did be lodge before t
Damnt. At Hr. Unlerwood's.
Ur. Stramge. Waa there a bed pnperad a^
cordinglyF — Dowm. Yes.
Mr.Strai^s. Deyeuknowtbadnybeoiarf
m an Apptaljiir Mufder.
A. D. 1730.
m
V«uwjr jroimerein ihe liouic
— ' - CBinc •loug with him ?
lb. W^mm. Ymi alleudeil him nhilil he wm
Ihu*!— l>n«<M. YC9.
Hi. ITyaK. AH thv timp F— Ddvhi. Yes.
■lII^iiii. What coudilioiiol'lieallh wuhe
JW>t. He wmsK weakly genlleinan.
Hr. njnii. Wn there uiy etlraurdiiiary
(Bvtofcra or himf
Dmm. Vhs be waa put in liie room one
■i. Vymn. Wai there a club kept there P
fl—ai. Vc9,BD<IHr. BaD)britlfeaDdca|itain
1 he WM brought
- with Iiim ?
Itr. »>>■. After the
■ r-^Xtarti. No.belure,
Mr. tlyan. How tuug before .'
D^Mt. There was a club in it two orlhree
iTlTy'Hi. DidyonrraaslerusetarUilhint?
Pww. AlallteKure-lini'a.
Ibn. fnv. Waa Mr.
iwM. Y«^
Sn]. Rfrt. Wbal roam nnx that, that the
hi was bmuKbi out ol, thai he lay in ?
Omwi. lilaa'lkunw.
lij, £yrt. After you received the message
I IM o'clock at mght, was there a bed
lltm- I can't tell.
. SoUeworth sworo.
dn-fjir*. \Vh>i are your
SiMrmD'fA. I am chanilietlain at Mr. Cor-
Wttv
fcj. £y>e. How ollen was Mr. Ctslell
Inwla lo jTour bouse ?
tUhkiBurtA. lie was lirouglit but ODce
tUalWMtlicrr.
Bb]. fyre, Wat he brai^ht in by (ioleDCe,
■haawa taunenlf
with Mr.Curbetl;
anycare taken of him
HaUctm>rlk. lie Wanted for nntbio^ while
tins tbvrv, for he had every Ihln^ he asked
IMaMa.
WaMapesny »i«leoc«.
«blM«B«lhe>«F
hriar tMi days Iwfni
|tw, be kept bis ni
IT iMi days Iwfnre be M\ sick aud lam-
c kept bisntom aliog«ilwr, aoi] very
Hr. Utrmrnpe. Tb« )i«i) that was nrvfuired for
KvtaituMMllylaiJIaf
Bal^ivar/A. It wb> a bed thai had been laid
^1 Mr. HspkiM had laid U|icm ihal bed.
th. KrtlUty. If a loan wa* *|>eshinK »l (he
^c9Md4 yau bear what wa* said in Ihe ioner
N«, UMpt ha tpaka fery loud.
Mr. KellUbtf. Was this one home whera
Mr. Caslell luy, or two houtesf
Haldawotth. There were two hooae*.
Mr. Keltirby. Was (here any onramumcs-
liun or duor opened, or how did one lie up three
jiair ofalajrain uiie huuse, and one |ialrul tiairs
in Ihe other i*
Holdtivarth. One pair or atairs tamed iipon
(he It'li hand, to go to Mr, Caslell's room, and
ibe other lumed upon Ihe ri^hl.
Mr. KetlUby. IVhat conduion of health waa
White in wi.en Mr. Castetl came in ?
Uo(dciaorth. He had the amslUpux.
Mr. KellUbi/. How loug had be bad them F
Hoidemorth. He was blind.
Mr. Kcltkbu. How long was it hefore Whits
recorered ? Mow long was it be kept ii[i aHer
he recovered F — Holdetaarlh. Abont a month.
Mr. Keliltby. Hud While taken any purging
phvsic ? — Hoideasorlk. I believe doI.
Serj. £yre. Waa lliere any ineaaage sent to
Mr, (Jasleii's wife to come?
Boldencorlh. I can'taay ; nobody ererfiame.
Serj. Eyrt. Who provided necessarieaf
Holdarm-th. Mra. Corbeti.
Sf ij. JEyre. lie wanted uoihing T
Holdttaorth. No.
Mr. Rtcva. Did you not ffo to Jonaibaii
li«landp
Haldesictrlh. I was along witli him when
tbe eentleman died.
Mr. Betva. Did not yaa take awaj k bed
from under White?
Hotdt!u:orth. Yea, and I carried it into Mr.
Csatell'H room ; bul the bedstead being loo
little, I carried it up another jwir ol'stairs, into a
Hr. Rteoa. How came voh to put While
oait of his bed F Wbal did you put under
White?
HoUicsaorth. 1 pul at gnnd a bed as thai.
Mr. Rtcvci Did not White keep hisbedF
Holdcsworl/,. Yes.
Mr. iaiakeTley. Did not While continue in
HoldeiBorih. He wai removed into another
Mr. Fit:ahrrUy. Where was that F
Koldessartk. In Ihe next garret.
Mr. Faiukrilry. What was ihe meaning of
turning; White uniofnne bed inio another F
Hatdaicorth. It was for tlieeonvvnienceof ■
are.
Mr. Fa:<ikcrlcy. Did While make any com*
plalnl ihii you had taken away his bed?
Htiideitnirlh. I beliete he would duI have
had
lakeij
Fiaakerlff . Let me a^k ynu about the
Riair-case. Was there oo rOMiinnnlcaliuB lo
go fruin Mr. Ca^tell's room up lhal stair case
loWbile'a?
HuUeworik. Yri, when you go up oooiber
part of ihe aluir^cuse.
L. V. J. You say that there are (wo bonsei,
aud Ibut ibtre is but (ir>e sttair-caix ?
Kr, Faiakerley. When Ihe tnu tnww* were
laid into on*, Ihe Oisl pair ol' stair* actved iNlli
I43J
4 GEORGE II.
koiises. Di«i not Mr. CastelUay up one pair
ofbtairK? — Uoldcsuorth, Yes.
Mr. Faxaktrktf. Can you pfo down stairs,
iviLlioatgoinp: liy l\lr. CastelPs luoin?
HoUkstcorlh. No.
L.C.J. I tlious^lit llie houses were laid into 1
one, tillyou romu to tlif? top ? |
Mr. Aiahrlcy. Is not ouc of the stair-cssos
stopped up!* — Holdestt^orth. Yes.
Mr. Fasukerlcy, Uow long was ibis Uefore
Mr. Castell came' in ?
Holdetworth, Five or six da} s.
Thomas Norton sworn.
Mr. Strange. Do you remember any tnes-
lage brought from the Kiiig*s-Arms tavern f
Norton. Yes» it was to have a fire laid in the
best room in the house, and the best bed to ho
Blade.
Mr. Strange. Whom did it come from ?
Norton. From the King's- Arms, from Mr.
Castell.
Mr. Strai(g€, Was tliat the best room in the
bouso that he was in ? — Norton. Yes.
Mr. Strange. Do you remember bis coming
in? — Norton, Yes.
Mr. Strange. Did he come in of his own ac-
cord f—Aorton. Yes.
Mr. Strange. Did yon observe any violence
used to him ^Aorloa. No.
Mr. Stranee. Had he all the assistance ne-
cetsary, wbiw there, and while ill P
Norton. He had.
Mr. Strange. Who provided itP
Norton. Mrs. Corbett.
Mr. Strange, You know the situation of the
t>ar? — Norton. Yes.
Mr. Strange. Supposing then a person conies
down to the bar to ask for any thing, and nny
body was in the room liehinil tne bar, in can*: the
door was shut ; could you hear what was said
in discourse P
Norton. I think you could not.
BIr. Strange. Do'you know one Cooilman ?
Norton. Yes, very well.
Mr. Strange. Did you ever hear him give
any such account till of late P
Norton. Mcver in my life.
Mr. Strange, flow lung have you been
there P — Norton. Two years.
Blr. Strange, How kmg has Goodman been
there P — Norton. Six months.
BIr. Fuzakcrlcy. Is not tliat partition a very
thin one P
Norton. Yes, it is wainscot.
BIr. Fajakerle^, Did you ever hearken to
hear what was said in that roouiP
Norton. No.
Blr. FazakerUy. I supiiose you are a drawer
there ? — Norton. I aui a servant.
Blr. Fazakerlcif. What are you ?
Norton. I keep the key of the door ; I must
hoar if any one can ; I stand near the door.
Mr. Faxakerlcy. Is that matle np to the ciel-
inffP— JVbr/nn. Ves.
Mr. Filmer. Docs the bar go op to the to|i P
Norton. Yes.
Trial itfT. Bambridge and A. Corbett,
— Gardiner
[444
sworn.
BIr. Kettlchv. Did you attend BIr. Castell in
hisilhiotsP — (iardincr. No.
Mr. Kettiehif. Can you give an account what
cuiiHiiion he was in ?
Gardiner. No, he was not sick wlien I mm
him.
BIr. KrUleby. Were not you with him wbn
he was sick ? — Gardiner. No.
BIr. Ketikhy. Did you go with him, when
he was charged in execution P
Gardiner. Yes, 1 asked him how he had
bePii used ; he saiti, with great civil Ky.
BIr. Kettleby. What house was he m P
Gardiner. At the Royal Oak.
BIr. Kettlehy. Did you aak him in what
house he was placed P
Gardiner. He said he was placed at Mr.
Corbett's house, at his own request.
Mr. KetlUbu. How did he say he was ONdP
Gardiner. With great civility.
BIr. Kettleby. How long before he died P
Gardiner. I don't know.
Mr. Kettleby. Was it a year P
Gardiner. I believe it was about fbnfteei
days.
BIr. Kettleby. Were not you charged in exe-
cution at the same time P — Gardiner. Yes.
Mr. Kettleby. When wereyou charged P
Gardiner. The last day oflhe term.
BIr. Fazakeriey. How came you to atk him
such a question ?
Gardiner. 1 went from Corbett's with bivia
and came back to Corbett's again.
BIr. Fazakeriey. Uow many times were ysa
in company wiih him aAer P
Gardiner. I never was in company wiih him
but at that time.
BIr. Filmer. Do you know when he bad the
small pox?
Gardiner. 1 hoard he had the small pox, and
died in a fortnight.
Anne 6/tfA*e sworn.
BIr. Wynn. You were in the house when Mr.
Castell lay ill ?— Mis. Blake. Yes.
BIr. iryn». Was he provided with all neces-
saries ?
Blrs. Blake. Yes, I was present at making of
liartshorn- drink, before he nad the small pox.
BIr. Wynn. Was he attended with an apo-
thecary ?
Mrs. Blake. I did not see, I was sick before*
hand.
BIr. Wynn. Pray did you know the care that
was taken to i>reveut the disease fnmi the other
prisoners P-^Mrs. Blake. 1 saw no disease after.
BIr. Wynn. Was the room furuished with
goiMl furniture ?—BIrs.£/a/ic. Yes.
BIr. Strange. What was the matter with
himP
Blrs. Blake. He had a flux upon bin whet
he came iu. i
Mr. Filmer. Had you ever the small pox P
Blrs. Blake. No.
M r. Filmer. W hen he had tbe small poX| '
not 3'oo removed ?
45 J •« «" Appeal _fiT Mvrder.
Hn. Blaie. Altfr Im died, I Iml leave la go
nL
Mr, Slnage. Was nnt (hB houM 90 rommo-
Ihss, iIuU *• you i"y up '*''*' I'"'' "' ■'*<'^ y"
^M'titynuraeirKile?— Mn. Blake. Yts,
Mr. &rsiif e. You did not catch tliem F
Hn. Biake. Ho.
}U.Stramct. Did White
Ib.CMirll died ?
l^Btcke. Iirukeptrri)m1Vbite,bM>n3e
IWMtbMlttiein.
~ Mmt iworn.
iDtlemlMr-Castell
SnJbwJ
. Inwhstn
•rdidyonUlce
^v. 1 wns ordered 10 tttend Mr. Caalcll,
■iMCordiDii^y I went to him, ud found him
kkd, in « fery «iiiTeni«ii warm roimi : rhc
Mdl pox wu not llien nuno out, but ■[>-
Mid in two davH tfter ; he iiMmpd alarmed
rite CMcmpcr.'but did iint My he wai under
anncn concern or alarm trum the cooRne-
IbL IfavfcMt. Who WM 10 attend him ?
Jfav. Tbera trai a nuTM. He did nolteem
■ ■Ht'an tlitng; there waa a good fire kefit;
laJMiil bv so to do, and be had efci^ ihiiig:
mi UiB in ffood order.
^.Hmhiju. Did be make any complaint
Ifar. 3iQ, he dctb nid aov thiu? to tne, I
<Mn uKer atranger, Hr. Waller wot the apo-
tmatj employed.
. 5jni(A amirEi.
Kr. Slramp. Al the time Mr. <;9itell waa
■.forfaett came to Hr. llambrid[;c «l par
hvctSmilh. Yea.
Mr. Strange. Trll wliat pawed.
SaiiA. I think it wai the Snd or 3rd of De~
iMber, Coibett came to Mr. BamhTid|;e, ami
BMbidgewuin thepaHoer; I iva« Mttiat^
tea; we were rtot roie from table, and Mr.
CwtaUwas tcllincr Hr. lianibrid^ of iheaHalrM
tf Ae priwm, audtaid, Poor Mr. Caitell in nut
ad ; aad Itambridge aikol what waa the mit-
Ivvithhis? He laid, he had caught coUl
hibridge aaid he woa icry sorry fur it, ami
li^ Oif e my icTTice (0 your wife, and dcairt'
IvMtabecareof him.
Uf.Slratige. What iliilHr.Bambn'lgeBikF
imilk. Mr. Bambrldge asked what was tht
■nar, and Corbcttaaid he had cauglit culil.
iMriyng of the affoin of tlio prison reijuirinL;
Ac Atcction of Mr. Bnmbridgp, the next day
fMeacameaKuin,and BambridKe asked lii[i>
tav Mr. Cailell di'l ? Mr.Corbeit aaidhe bail
Cm mbM pov, and said the gentlemen in Ibi!
«e»« rery uneaiy al hi* Iwine in Ibe mid-
)h«f dwtMuic, end'he wni tbinkiuKtn hue
liitww»ed a room higher; and Mr. Bam-
WkcMW), he would nit \iair hiio reimife>1
I^IT ia tlM h»MC, la ma iba ri»k el' hii life ;
A.D. 1730. H\6
_ thep-nilemen were uneaiy, he woold
haii: tbem removed into the prison.
Af.ir/in awom.
r>Ii'. SlTaiigr. 1 ask yim if yon were not of
iliu cU.il Willi Mr. Castell, in Corbelt'a honicf
M..rlin. Yes.
. , I Mr. j/ranfc. Were vou preuntatthechib
down before „|^ |^, jj,,,^ j,^ Casiefl was bmught IbereF
Marlin. I think I was there tuat night be
wna cliarged in execuliuu.
Mr. t^traHpf, 1 nsk yon whether 3Ir> Car-
belt and ('aatull wire thi-ic in a fiicndly man-
ner, nhni t(^'lb>;r?—.U(irt(ii. Yea.
tilr. Si range. Sothej ivere together F
UvrliH. Yrt.
Mr. Siranpe. Was itlr. Ilamhridgo IhrreF
Murlin. Sir. Bnmbrid^cdiilnwt cvincto tba
dull alt thai icrin.
IMr Strim£f. There '\s one ibinff I must lak*
noiicc of, that the paper Ellain owned Ida hand
iu. may \m read.
S.'rj. HaKkint. Were ynu nith Mr. Caslell
all i)ie time ol his late illnrss?
ilfurlM. I viaileil him cuoataally.
:S<-rj. UawkiM. Vi\M did be aay H to Ilia
Mardn. I never hcanl any complaint.
^^l:rj. Haiekua. Haw often did you gn I0 Me
him?
Martin. Every lUy at CoibeU's.
Serj. /iusftiHt. Did joiieTerbearbimcOM-
pluiii 111' Uandiririge ?
JllurJin. It UBS liie lecnnd day after tb»
small-pox came om, I weni into the room Iv
' II ; 1 could not see him, being in bed, but
liDrw my voice, and he would have bad mv
ink snmetliiiig. 1 wb« immediately called
L ut the room, and Mr. Caitell would not
II' liad me|;onc; I lutd him I miial, but
iiiil rttum aoon ; and when i went down, I
,v JiU. Uambrid(f« there, aiiJ I luld him Mr.
^'iislL-ilhadthesniallpoi:; and Air. Llambridga
iaid he was very sorry for it, tint he had trifled
ivilh liim and himult' too : Wliisn 1 went up
i^in to Mr. Caateli, and lolil him that I had
iuld Mr. Uambridge that he was very ill of iha
>mtill ]>0X, and Ibal Mr. Bnmliridge aaid he
'*— it; (I would not ueolion
Mid, t'ui Gull's sake don't
„„„„„ _ , . taii'l Iwar to hcnruf il.
St'ij. UavluHt. As IU the ti-mper of Mr.
Lnsitll, nas he reserved P
Murtin. He w us very free in conversation,
l)iit []iit free in lelling ul iiis circiiniilanc'eii.
Ml. Sirangt. I desire the paper Etlam own-
cil Iiis baud to may he reud. [Which waa ac-
coi'dinely produced and tend, and appeared Iu
he a bill of sate, dated the 2Sd ol' Oclobcr,
17^8,] . _
Mr. Strange. The wiluess when I came to
aA lor the hill of -lale, did not rciuember whe*
it IV ,i!i executed.
L. C. J. But what use U it of?
(^tJftlr.CuU-llsa
M«
Did
449} Off an Appeal for Murdtr
Cedmtr, There, was not an enqairj re-
ported.
Mr. n^n. Was that iDdorsement made at
the time ? — Codnor. It is my band-wriUu^.
Mr. JVtfnn. What was wrote there?
Codmtr. De bene esse.
Hr. Wynn. Was it done at that time?
Csdnar. I vo^^hx go into the office.
Vr. Wvnn. Was it usual to let parties exe^
CM hoDfIs before enquiry was made ?
dAkT. Yes ; it was the daily practice.
Xr. Reeves, You say it was the usual prac-
lictlo take bonds de bene esse^ and you say the
Mher bonds were cancelled ?
Coduor, 1 beliefe so.
Mr. Reeves, Did yon see them cancelled ?
Codnar. I did not.
Mr. Reeves. I ask you then, whether it was
wnl for you to canoe! a bond that was good
VAn another was executed ?
Codnor. 1 would not have taken upon me
tka to bare done it.
Mr. Reeves, Do you know it was done?
Codnor, 1 can't say I do ; it was usual to
like new bonds de bene esse : when bonds given
kdbre were cancelleil, and the persons had been
auind afVer, and not found sutficient.
mr. Reeves. What were ^our orders ?
Cedwor. My orders were to take the securi-
tiBfron time to time as they came.
Xr. Reeves. 8o you took them de bene esse f
Codeor. Yes.
Hr. Fuakerley. You say you hare got a
Wbod to take bonds de bene este : did not you
^ I bond de bene non £<ie, which he was in
oeniion for ? — Codnor, Yes.
Xr. Fojsakerlti/. What, do you take double
tiaw?— Corf/ior. Yes.
Mr.Fazakerle^. Did you say how much he
*■ is execution for ? — Codnor. No.
Xr. Fazakeriey. Do you know how much ?
Corfnor. Yes.
Hr. Faxakerletf. Was there any tliiug more P
Corfffor. No.
Xr. Faxaktrlejf. Then that was 500/. ?
Corfiior. Yes.
LCJ. iSo your constant practice is, that
l^wcurities are first bound, and then you en-
^ after them? — Codnor. Yos.
L C. /. You say you took these bonds by
A. D. 1730. [450
claration, and take security for the subsequent
charge in execution.
Mr. Fazakerley, When was the last security
given ? — Codnor, About a week after the first.
Mr. Ffizakcrley. Observe ; if an action it
brought for 200/. and you take security, and a
week atler that judgment is had, do you take
other security, and double the sum ?
Codnor. Not wiiliout a Habeas Corpus is
brought.
Mr. Fasakerlej/. So you don't increase the
penalty, unless you distrust the value of the bail F
Codnor. No.
^\t. Fazakerley, Because T observe a great
many judgments arc given before the security
is increased.
L. C. J. The last bond was executed the
1st of December, and he was taken ill the Sd.
Mr. Strange. My lord, wc shall call no more
evidence, but submit it here.
Mr. Reeves, My lord, I must beg leave te
take notice of the objections they have made.
The first is, that he went voluntarily to Cor-
bett's ; that it was his own desire. In answer
to that, if our witnesses are to l»e credited, we
have proved the whole appeal. We have proved,
he was taken forcibly ; I humbly apprehend
that was sufficiently proved; for if Corbett
took him without his consent, it was forcibly;
and it was unlawful ; it will warrant the de-
claration of appeal.
The next tact is, that he was carried to the
house of Richard Corbett, where one Joseph
White was then ill of the small pox. The ou-
jection did arise, that it was laid Co be the honse
or Uichard Corbett, which was one house, and
here are t%ro ; one ^h'ere Joseph White lay
sick, and they say, he was carried to tlie other.
As to t!iat,it appeared by the evidence, that be-
fore this tact happened, they were made into
one house; and notwithstanding they were
made into two dwelling-houses before Castell
was put there, our witnesses say, they went up
staii-s into one and the same house ; and that
IVIr. Ciistt^ll was carried to the house of the said
Hichard Corbett, where Joseph >Vhite was ill
of the small -pox.
The other objection is, that Joseph White
was well ol the small-pox ten days hofore Mr.
Castell was brought there. My lord, we ap-
^Bambridgc's directions? — Cofinor. Yes. prebend that thai is contradicted by their own
LC.J. What did you do with the first I evidence; that the man was well, and looked
^? upon to be recovered ; for 1 must lieg le.ive to
Cndnor. I can't charge my memory.
h. C. J. Are you sure you took but two ?
Codmor, Yes.
Hr. Sirange. It was very probable that thcf^c
Pttple might demand 1,000/. bond ; the other
hnl, irhen given, was for 2,000/. What was
tbeictson of your taking a larger security ?
CodtUfT, I rei*eived three Habeas Corpus's,
Hicfa was the reason of taking so large a secu-
*9 (ipeaking lo Mr. SStrauge.) ^Vo always
Mt ncurity, though charged by the same
jhaiiir, for 'two sums.
LC.J. lathatusuid? — Codnor. Yes.
L C.J. So thai you take security for the de-
YOU XVII.
ipon
observe, that upon the evidence of iloldesworth,
it appeared that White was blind at that time
when Castell came in ; and he remained there
a considerable time after Castell was brou:;ht in.
As to the points of law insisted on by the
gentlemen on the other side, 1 must submit it
to your lordship, whether this proof is not suf-
ficient to support the appeal ; that he was car-
ried against his consent to an unlawful con-
finement, and at a spun^ing-houMe.
Mr. Strange. The poini of law is, Whether
Ue wi\s unluwfiiily taken ? And though bo was
unlawfully coti fined, yet it doiH make an un-
lawful taking.
2 0
lMr«riuiBr BaUHb hoilies may
intMOM npom.
Vr. f ua&ricy. We desire Id ctOl Ni
Abel ilanilmg up agnin.
Hr. fuoftcrlgr. Wliat bus bcco the u^n
giren for.ioot ud judgoii
liren lironglit, and SMHtn
given u)ioa Hi
^1] 4G9PIU3BU.
£. C. J. ThouKli be wm Itwiiilljr t«kM, jtt
Iw ought not to be notawfiilly wnticd. Ha
iru CMTied into Corbatt^ on Iba liib of No-
nmber, tad the BAb bJod «M ghen Uw M of
DaMmber j which wu a gaiM while tf^ he
VW taken ID awtody.
Hr. Amvm. There wu a tiurd bcwd given
ftr ijOOOt. eae was in Jul;. In.oidrr to intln
theaa bond* elearill^fv ifaMld be prodaoed.
' Hr. Sinmge. Coiuior awean, that he tooli
bat two.
Ur. Rteea. It wm iwon Vy EUwi that
there wer« five.
Se^.VantU. Theeni&aenMatwuaproper
fonflbemeat. A tgtUF* hoiue ii a prapw
conflnemeDt, and the taking waa qM an uolawr
fbl takioK.
L. C. J. Ii there not a diftrenee cf beiDV
Cfnied into the ntlca ? If pot in the rvlea,
It b not a part of thf pina ; if lOt, ever^
fmaatif that escapei «n4 ^Wi tba gaelK m
answerable fur; sdJ a ftwuitt hsin^ IberCt
will iioi' be lookat npoB to beapnaaocrai
large : erery pai-l of the mica ia a pert «l
ilie ftitoa. tliuuifli DOt wilhia lb* walfa : if il
it not in (lie pnson, theo iheve ia aaea^: il
Vat boih illegal ID caiTj Wmiwrai and enflae
him there. Tliere ia aiKillM> fiOHidentiM;
they uy, capitally ^oilt;; I dro't Ipww btt
tbatbtlie catebere; but then it il Mt hid ao
Id the declaraiiMi. IfapnaqncrdiMbydDTeaa,
the gaoler ia ipiiliy, aod u^talle guilt;.
It' £». Wi! IwinUj apprebnd. thrt tte
«aae muat be conaidered, that bedid with nelice
•AKlhoDgbt murder the Mid Robert CaatelL
X. C. J. The Ian maltca it ao.
Mr. Lef. Thererore I appreliend, from the
nature ut' the thing, and his behafiour, tbV
it must be taken, Ibat ia this case Ibej
dill feloniouEly carry tbii man to the booM'
of Richard Corbelt; but that roust be de-
eded b^ (he evideoce. Tbey kacw the Iidum'
to be inrn:tFd; therefore, whether the oii.
S'nal taking him up wai legal or illegal, ik
e lhiii|{ lo be ~considerrd ; if be wai only
taken up lo be carried into the gaol, it will bare
another con side rati on ; but the priiuner'i in-
tentioD i« to be judged by tlie jury. I don't
know whether I should be proper in taking
notice of the eTideuce ; I ihould Terj aburtly
lake notice of the evidence in thia trill.
£. C. J. That can't be done. •
Hr. Taxakerley. At to the lioglp matlet ol
taking, that will be theconaequence of the oilier.
L. C. 3. Though the act itself ia lawful, tli<^
iiaage of the man will make it unlawful ; this
ba necestary case for their coaiideralioa ; for
where a man dies in duress, it is morder in tbi.'
fpolcT. It il ihe nature of human bodies to tak<.<
infectuu) ; and if a man ia put into a place llie 13th of the eame Deoember he
wberetuch iafectlaaia,it will be murder ' '*
gaoler.
but vn«e Ht. Gamfcicr'n liroc, wlie
it ehaiged with neme uroce&g, we
(he hand Ar (be am ; lot when it
lake the bond in a double peoalty.
Hr. fhfdtcrl^. We desire u> a
InhDd, to aak hue a qiiealion or two, aa to i
deelantiiu of Holdaworth.
Jenetioa Irtlandsvnra. \
Mr. FMoierleu. Ua you know UoldewariW
Ur. balnd. Y«.
'Hr. AsaAerZey. Had you any diacuMl
with him ahnnt a bed being braii{(ltt eot ■
Wbittfanomr
bfbmd. No, 1 had no such dlsi
appeal of nivrder, brought by (
nr the death of ber buibnnd. i nmn ■■
nntieaefthe whole appeal. Iieciuae ptwA «l
repaired rftbafcata as there hiJ. It daaml
that OB the 14lh day of Nurember, in the ■«
00 the Mtb of NoveuiWr, Hieliard OaiM
took her bndband, nrroated liiin, and cocrin
him to the bouse «( liiiii, the laid Rioban
Corbett, and kept him tbtie for the apace a
91 daya, against the will, and wilbent Oi
consent of Uie said Robert CealaU. Th«l
Eoea on, and laye, that the aaid RiehBid tSm
hett did onlawfally, vidently, aad of dmIs
aforethought, imprison and detain the M
Robert Caatetl ia Ida the aaid RiobetdOertall^
bouse; and ihat.atlhe lime oftafahwand EM
prisonioff of tba saki Robert QasWl, WU
was ill of the smsll-poi io Ihe same baaaa
which distemper Robert Castell netee had.
Forther aeU forth, Tbat while ber hMlaa
was there, on the leUi of Novetabi
fjuesled Bambridge and Corbett,
would not detain bim in the boosa ;
Ifave notica that White was sick of tl
ttox, and that Castell had not bad tJMkt ; M
if he got (hat distemper, it woidd Be tho eoM
sion of his death: that uotwitbttan^Bg lU
distemper was there, thev detained him dMM
and there kept him till the lUh of DeaeabM
Purthcc seu forth, That on the 4th of Si
cembcr he fell ill of this dial
tbefii
To condnde, tbat these two appelleea i
Mr. Slrange. That does aati4>pear to be I fUoniooaly, tolunlarilf, and of nMGce nliial
*-ne with the priTity of cither. { Ibengbt, kill and murder the. laid Hehai
L. C. J. la the proof aguost Cotbett's lak-
* Thie word Menu io be KdaDdaid:.
Castell.
! To which the two defendaota bare pleadi
, Not Otultj. The qttesliea Tor yov, gentlem
4»]
em an Appeal Jbr Murder.
A. D. 17S0.
[454
of Che jivj, to eoiMider of, is, If the apfieal is
proT^y and oot what n opened by the counsel :
jommnU regmrd tlutl no further, tbon it is
proved by tbo evidooco.
This oppoftl it grounded upon this law ; that
li Ibe loir hot parlicolar guards and privi-
te justifying the rij^ht of eaolers in de-
er jH-iooners in safe custody ; soon the
Dtf, that though they had tlie liberty of
priooBOrs secure and safe, yet tiiey
them humanely, and put them into
I as do not prejudice their limbs and
. fir If theT should be put in such places
aiftey* do, ana they die, it lies at their doors ;
si li iBBrder*'!*
If 0 gooley brought bodies that were infec-
liiis bio a room, bf which a prisoner should
cttAa ditteoiper; or put a man into irons,
Wwhiell he sboald die, it would be the same
mtg. If a gaoV«r will take persons that have
M a dhlfinpii, and carry them to a room
ariiA- their consent, after notice was given
lEltat ouch a distemper was there, it is at
lb |lBil. Gentlemen, i must observe to you,
iMB'tho pveoent cose all these circumstances
tlsooDCvmnt :
b# wao carried there aflfainst his will ;
o&lonpe^ #ai in tho house ; that he
IlihtonH^rfgf of tho distemper being there,
IIk ntttoro of it was infectious ; that
o woo made OB his behalf ; that not-
Ite be wai carriea there, and there
\% iM By thotjftieans caught that dis-
mwbm wto the occasion of his death ;
^^ dioiOitipeis may arise fW>m human
lllBh«->Tliii is tbefeundation upon which tlie
Tht€M' vHtness is only to shew, that Mr.
«*«■
>
word seems to be redundant.
f ** IW fatw watches with a jealous eye
•itfto flondoet of these officers" [Gaolers
mk fcnoDO employed by them] ; ** and there-
bnif ■ priooner under their care die, whether
SdaoHeor oocident, tlie coroner, upon notice
soeb death (which notice the gaoler is
iMifBd to givo in dno time,) ought to resort to
Af gaol, and there, upon view of the body,
■At ia^uiiitiOB into the cause of the death.
tl^it it; wore owing to crUel and oppressive
IMiOD the part of the gaoler, or any officer
tfaio^ or in the language of the law to duress
rf hipiisOBinont, it will be murder in the
goiHy of such duress. For though in
~' the principal may in some instances
for the fault of his deputy, yet in
s eoch man must answer for his
or delkaltf. If a gaoler, knowiog
a priooner infected with the small -pox
~ in a certain room in the prison, confined
prisoner against his will in the same
i; iBeoBOcqucnoe of which the latter, who
bt not bod tlio distemper, of which the
Mer had oolioe, caught it and died of it ;
aa^ bciof^ dooe from - a deliberate malifj^nant
■Nhe, would clearly be murder in the gaoler."
larsPlnoortboCrowni c. 5, § 99.
Bambridge was warden of the Fleet ; and for
that end, he produced a copy of the letters
iiatent. I shall take notice of the time, which
IS the 30th of September, 1798 : it said, he
was not admitted till afler, but there is no
proof to be admitted.
The next, John Noel, is to prove, that bo
was committed the 18th of June, 17S8. I
need not trooble you with ail the particular
sums, but that all together they come to 527/.
When they have proved this, it was necessary
to shew that he was a prisoner at large.
As to Corbett's house, he says, Tie was a
prisoner there two months, and that he never
saw any t\\m^ hut what was very humane ;
the hou^e was in the liberty of the rules, and
so consequently part of the prison ; the ques-
tions that were asked by the defendant's coun-
sel were to shew, that he had a right to tako
him up, because he mig^ht have went away
before ; that the house belonged to the war-
den, and that the liehaviourof Corbett to him,
and his usage while he was there, were very
humane.
He told you he was taken ill the 4th of De-
cember, and died the 12th ; that as for tho
house, there were two houses laid into one ;
and White was not properly in the house, be-
cause one was in the first floor in one house,
and the other was up three pair of stairs in tho
other; and that direction was given, that
White was not to come down; and White
never came down during the time 3lr. Castell
was there, before he died.
That as to Corbett's wife, when Mr. Castell
was ill, she did look afler him as much as if
he had been her own child ; and that Mr.
Castell did not complain, but did say, he was
very sorry he had the distemper, and that Cor-
bett and Castell had been of a club together ;
that as to the room, it was a very commodious
place. As to what evidence cl.>e was given
oy him, I shall mention but little of it now,
for 1 am now only summing up for the ap-
pellant.
The next evidence that was called was cap-
tain Sinclair ; he did nut speak to the time in
question, hut spoke only tu 1727 ; he was
going on, but the counsel knew that was not
proper, so stopped him.
The next witness was Wilson ; he says,
that it was a public house, and that they sell
beer, ale, and wine ; and that Castell had pro-
vision there, ai\d paid for it. 1 desire, if I omit
anV thing 1 may be put in mind of it.
The next was captain Collet ; they mado
use of him for another purpose, to prove that
Mr. Castell had received 125/. therefore they
insisted, that Mr. Bambridge having notice
of this, he might take the occasion of insisting
upon further security, in order to extort money
from him.
Mr. Jjee, There is a juryman and the pri-
soner talking all the time.
£. C. J. I must have no obstnulion of jus-
tice ; you must not disturb the C'lu.i.
The first thing to be doue vv ol«\» ^ivi
455]
4 GEORG E II. Trial of T. Bamhridge and R. Corbel^ [456
Bambridgc had knowledge of Mr. Castcirt
receiviiig the money for Uiat end ; Collet and
Brent Were called, who proved, that a note
was given to Castell, payable to him or bearer,
for the sum ; and that it was allerivanls al-
lowed in Woodward's account. Collet says,
he was in the same room with Custuil, talkmg
about the judgment, and says, that it was pos-
sible that he might mention the money that
was to be paid by Castell to Bambridge; that
is the uiuterial thing. They would inter on
the other side, that it cannot he proved, uulcss
it came to the knowledge of Bambrid^e ; for
though Brent went up to Bambriuge, he
cannot take upon him to say, he mentioned
any thing in relation to that sum.
What is insisted on by the appellant's coun-
sel, is, that several securities were given upon
account of Mr. Castell, and therefore security
was given before ; and in order to pro?e that,
they called witnesses to shew he demanded
several bonds, and that notice was given to Mr.
Bambridge to produce them. As to that, the
answer that was given was, that to prevent
disputes in court he had but one bond. Then
they called upon witnesses to prove the cir-
cumstances. Mr. Peter Ellam, who says, he
gave bond five times, the first in July, 1728,
for 200/. in the second bond one Chambers
and Peter Ellam were bound ; the third was
for 1,000/. entere<I into by him and Curll ; the
fourth was for 1,000/. entered into by Curll,
and him, and Bell, the latter end of November,
in order for Mr. Castell to have the liberty of
the rules ; and there was a fifth for 2,000/.
j^iven : he says it was on a Monday, but that
IS a mistake ; Peter Ellam, and John, and
Curll were bound in that. lie savs, that be-
tween the 36th and last of Noveuiber, he saw
Mr. Castell at Corbett*s, and he asked him
what was the reason of his being there ? And
he made answer, That he did not know, it was
what Bambridge pleased. Then he tells you
how he came to be bound ; that he was a
creditor of Mr. Castell's in the sum of 200/.
that he had a good opinion of Air. C^astelfs
industry, and that he had a bill of sale from
him, but did not know the date; then the de-
fendant's counsel produced a paper, which
shews it was the 22nd oi' October, 1728.
That is the point controverted, as you will
see by aod bye. He says, that there was one
Chambers liound, who did not care to con-
tinue any longer ; he says, he himself was in-
rlinallc to gnc it up, but that Castell pro-
bably might get over his difficulties, so he
uas resulted to continue. He was asked,
^\'hctlier liambridge did dissuade them from
c^'^ntinuing securities? lie says, he did en-
c'ounipethem to continue, rather than dissuade
them trom it. Afterwards the security was to
be dciivcTc d up, and he was carried to Corbctt^s,
after the 4th or 6tb bond was given ; but he
can't take u|K>n him to sajr that Mr. Bam-
bridge did ever accept of it; then was the
other security, in November^ 1728, givrn by
kimself, Jodu Ellam, and Curll, the derk at-
tended at GraTcsend ; he says, be did send to
them (Castell dicing uneasy) to haye the bonds
executed : he says, that he was with Castell
before he died ; and he says, be was mnch
concerned at having the distemper, and thai
be did say, that Bambridge was the oocasin
of his death, for he applied to him to let hisi
go, but he did not let him go ; and told hia,
if he did not let him go out soon he knew ba
should die. This was not abofe two diys
before he died.
Then, gentlemen, they goon upon the fonner
enquiry about the bonds, to fix the bonds npoa
Bambridge, and called Daniel Hopkins. He
says, he was Clerk of Inquiries; but that he
was taken very ill, and Codnor officiated for
him. He supposes Bambridge did, if any
security was not found sufficient, scruple to
continue him ; and says, when security sur-
renders a man, it is the constant practice to
take them up by a tipstaff, who brings them
in custody, and puts them into a spunging^
house : as to the house of Corbett, be knev
the bouse, and that there was good nsa^
there, and that Mr. Castell had not any lU
usage there. Then they g[o to shew Mr. Cis-
tell was carried there without bis conssnt;
and in order to prove that, called Mr. Under*
wood, who says, that last July was twelve
months (he continued in custody till be died)
Corbett came one morning to enquire afler Mr.
Castell ; then he was not at bis room, and
Castell seemed much concerned at the hearing
of it, and said he would go up and lock bin-
self in ', that Corbett came at nine o'clock in
the morning, and took Castell, and he seemed
▼ery much concerned ; but Corbett did not use
him ill. Hopkins says, that Corbett said be
must go aliMii; with him, his security had sur-
rendered him ; upon which Castell desired to
stay there ; and Corbett said to that, he bad
the warden's order for it, and he must obey it;
he wished he could excuse it.
Then they called Catharine Mackartoejr;
she says, she was with Mr. Castell and saw bua
the day before he died ; and says, she saw
him about three days before that, aod he said,
if he died, he would lay his death to Mr.
Bambiidge. She says, that he wanted some
necessaries, as a tea-pot, knife and fork, and
that Lor mistress supplied him.
Havage was the next ; he says, he saw Mr.
Castell a little before he was taken into ens-
tody ; and Mr. Castell sent to him, to dcsirt
him to go to Mr. Bambridge, to acquaint hiai
that they had the small- pox in the house, sad
that he was afraid of catching them, for bii
family had suffered very much thereby ; so he
was directed to deliver himself as tobismei*
sage ; and that he had a great inconvenience^
to be locked up on respect of going out by day
rules : he says he did go, but the defendant
gave no answer till the last time ; he says, bn
went two or three times ; be don't know bit
he went thi-ce or four times, and be deliTCiid
the same meesage everv time, and be bad an
answer till at last, and tneB be said he wm \m
437]
o» an A]^eal/br Murder.
A. D. 17S0.
[458
cxecotioB ; and af^er said, be was chaif;ed
with {Treat sums of oioney, and he must take
care of his office. He says, that some time
lAcr Castell was taken ill of the small-pox.
He says farther, gentlemeD, that Bambridge
caae iclthe King's -arms ta?era, and said that
hrhad been at Corbelt's, and that the small-
fnbein^ mentioned before Mr. Castell to be
tkna, lie said that Castell was extremely af-
' ' ith it, and irreatly concerned. He did go
e sort of business to Mr. Bambridge.
was the next ; he ea?e you eridence,
I shall not repeat, it did not come to the
!■; but be being cross-examined, said Bam-
ka^ treated him well.
Thea Sarrige was called ; who said, he
voa with two letters from Castell to Bam-
kri^fei and Bambridge said he would send an
■sacr. This is only introductory, to shew
Ihit Castell made application to Bambridge.
Gaodman was the next ; he says, he was at
Gabctt's, and Bambridge came there, and
OMldl said he had sent several messages to
Ua; and pursuing the discourse, Castell de-
■fd to go into the gaol, or go into the rules,
kaase the distemper was there, and he cer-
aialy should die if he caufht it. He swears,
lltf Bambridge said he should neither go into
At gaol, or into the liberty of the rules, with-
Maeertain sum; (he could not take upon
kia Is swear what it was) to which Castell
■ii, he bad given security enough, and he
*«M give no more. Then he went into the
k^Tioai, and the next day he was taken ill,
wi daaired a fire in his room. The counsel
«Ae other side, they did examine him to
hsv the description of the place, and asked
ka if be could hear what was said; he said
IW Awr was shut, but he took upon him to
ana be did hear.
Tbn Sutton was called ; who says, that
Mr. Castell was very timorous ; and says, she
««s MAt fur to White ; that Air. Castoil looke,d
Wrio the face, and fancied she had the small-
|ai; she said she had no more mark than at
time; and she swears be did die of the
Hljpox.
Westbrook was the next, who spoke to the
purpose, to shew his apprehension of catch-
neibe small -pox.
Tbea they go to the other evidence, to shew
dnt there was no necessity of carrying him to
lUi place. There was a room Kilbury swears
VIS an empty room from the latter end of Oc-
Ukr till afaont the 5th of December, N° 16 ;
ibae was a lumber-room besides, that might
bift been made commodious.
Bosch be says the same.
Beaver was called next, to give an account,
ibM there was not only a room in the prison
apty, but that there were rooms empty m
Maarspangihg-house. This is the substance
4 tha evidence, as near as I can lay it before
^ The evidience given by Savage is the
■■I autcrial ; and ilie eridence p:ivcn by
fadasB aad the other witnesses, of his fear of
Mag tbt snall-poz.
This being the evidence for the appelhmt;
for the del'endants, they insisted upon some
points nf law, that the party here was not ille-
gally taken, and say this was laid so in the de-
claration. This was urged, because they will
shew you in their evidence, that it was proper
for the warden to take him up by a tipstafi*;
that this was a legal taking, and that it will be
the consequence only of ■ that will be
taken notice of when that part of the case
comes to be considered ; that it is laid to be in
one bouse, but there are two : though they are
different apartments, this must be considered
as one house.
The next thing that was laid, was, that White
was sick at the same time when Mr. Castell
was brought in. Now say they, having proved
that, they have proved the declaration.
I don't see that the man can be said to be ill
of the distemper when he was brought down ;
though the defendant's witnesses say, that he
had not taken all £is purges ; that evidence
will take off the objection made by the appel-
lee's counsel.
Then they go on further, and say, that ho
did actually catch this distemper ; and on the
other hand, they say there was little reason to
believe it, when lie was kept so long before he
came down. This is true, it is to be consider-
ed in that manner. As to the objection of that
part of the declaration of Nr. Castell where
ne declared Bambritige Bas the occasion of his
death ; 1 must acquaint you, where a man is
wounded, and dies in a little time, we have ad-
mitted what he said to be given in evidence.
These thinii;s were at the time when he had the
distemper, a little time befo:e he died.
The counsel for the defendants gave this an-
swer, that if they brins^ him there, that his
declaration would not si(|[nify, for if they con-
fine him there, they have arir^ht ; it would be
justifiable in them to do it.
AiXer this oLscrvutinn, they do say, that it
was very incredible to hear what was said in
the room at the liar ; the room was close board-
ed to the top, and tiie door was locke<l, and this
was a long time before it was discovered ; and
called witnesses lo prove, how incredible it was
to hear what was said in that room.
Then the defendant's counsel come to give
evidence that his security had surrendered him.
The witness they make use of was Mr. Chap-
pel, to sliew that Chambers would not continue
as security any longer : He gives an account,
that Chambers would not stand, that Peter
£l!am was of the same mind, but afterwards
did recede, and Bambridge said he thought
them very secure ; what could induce them to
withdraw their securities, don't appear; both
the £llams would stand. Chambers told Bam-
hridjs^e himself, that he desired to take him up ;
and Bambridge said, if he must be taken up,
you must go to a tipstaff, and directed him to
Corbctt, and Corbett demanded his fee. That
he could not find Castell at first, hut went a
second time, and took him.
Ellam first refused, ailerwards he was eoun-
459]
4 GEORGE II. Trial of T. Bamhridge and R. CorbctL [46fl
ter-security to Ellam; that was the reason he
called the uote from Chambers.
Chambers desired Air. Chappel to tell Bam-
brid{;ey that he then came to town in order to
give him up ; and Banibrid^e told him he wat*
very safe, and he desired him to continue seen-
rity still. The use they make of (his is, that
if Bamhridge wanted uim in custody, he would
not have persuaded him to continue security.
He says, thatou iiambridge's saying that, he
did continue some time longer j then he came
to town, and was resolved he would deliver him
up ; he told hiui again, if he was revolved, he
must go to a tipstatF, and give 6s. Qd, for his
fee; that Chambers went that very day to
Corbett's, and had Cant ell taken up ; and Cns-
tellsaid to Chappel, that he was set on; and
Chappel said, he was not ; and Castell said, he
did not believe it ; and says that Mr. Castell
did not complain of any ill usage.
Jotieph Vains wa4 the next ; he says tliat
Chambers came to his house (he was not there
after he spuke to Corbett,) and asked him,
vhether he had seen Corbett? He said, be had
seen him that day : he came there again, and
met with Corbett, and told him he intended to
surrender Mr. Castell, for tiiat he was informed
be was going abroad with lord Londonderry.
He says, that he charge<1 Corbett to look tor
Castell ; and said, if he did not get him, he
would move the Court against him, and make
him pay the debt.
Woodyer, he gives an account, that Mr.
Castell was at the King's Arms, and says, that
Mr. Castell ordered him to get a room ready,
to air the sheets, and get a nre ; and he says,
he sent *bc boy thereupon, but that he never
saw Mr. Castell alW ; that Mr. Corbett went
ivith him ; that he went away easy, and did
not make any complaint.
The next is Downs ; he did not^ say that he
received the message from Mr. Castell to get
the room ready, and that the night before he
lay St Underwood's, that he atteudetl him there
tin he died ; and as to necessaries, he had
every thing that was fit, and there was a club
kept tliere, and Corbett used to be with them.
Then iloldcsworth the chamberlain was
called ; who says, that Mr. Castell came in
there, and wanted nothing ; he seemed to com-
plain of nothing ; before he came in there the
bed was aired. They asked him, whether they
could hear on the outside of the bar, what was
said in the room behind it? (to take off the evi-
dence of GkHHlman) he says, in his opinion he
conld not hear, unless they 8|)oke ver^ loud. As
to White, he says, he hy up three pair of stairs,
and Castell up one pair of stairs ; that two
houses were laid together obly at the top, and
that one stair- case was stopped up five or six
days before Castell came there.
That the bed White lay on was brouglit
down into Mr. Castell's room, but the bed-
wHemi being too little, it was carried up again .
* So in former editioD, but wrongly as it
this was five or six days before Mr. Castell
came there.
The next witness is Norton ; he tells yon,
that a message was brought to have a fire made
in ihe liest room, and to have the best bed jifol
ready in the best room. He tells yod, as to ibe
bar, that you can't hear what is said ia Ifat
inner- room.
They then called doctor Gardiner ; when hi
was charged in execution, be says, he wai
with him at that place; talking how Mr. Barn-
bridge and Corbett used biro, he said he wai
useffwith great civility. ,
This was the last day of Michaelmas term,
which was long ai\cr Mr. Castell was carrieil
there, for he was carried there the 14th ol
Norember ; and says, that he went back agaii
with him.
The next was Blake ; who gives an aoeooat
that she saw hartshorn -drink made; thatshi
never had the small -pox, and staid in the boast
the wliole time White was there, bnt nevei
went out. — Mr. Moor says, be found him ia i
convenient room, and that he wanted nothinff.
Mrs. 8mith was the next; who said, tbal
Corbett said to Bambridge, that poorCaslsU
was ill of the small- pox, and Bambridge de<
sired to let him have every thing that wasnOi
cessary for him ; and Corbett came again thi
next day, and said the gentlemen wcrenBeasy,
and he said he had thoughts to remove him ;
and Bambridge said, if they are afraid, let then
go into the gaol.
The next was captain Martin ; he telb yoa
that he never heard that he particularly com-
plained ; that the second day after the small
pox came out, he went to Bambridge, and wai
telling him bow Mr. Castell was, and Bam
bridge said he was very sorry for it ; then Iv
went up to Mr. Castell, and told him what Mr
Bambridge had said, and Mr. Castell dtsirei
he would not mention his name.
Then there was a ])aper produced to shev
what he did by a bill of sale.
Then King was called ; who ss]^, that Mr
Castell was at Corliett's, and that Biarobrid|[i
used him very well, and Bambridge paid ba
reckoning on the 31st of November, which is
about seven days after he came into Corbett^
house. — One Howson, another witness, ssvi^
that Mr. Castell owed him money, and tbat
Bambridge was employed for him, and tbil
was about ten days before Mr. Castell died.
Then they come to shew you what bceaaN
of the bonds. — Peter Ellam proves that tbcrt
were five ; but then it was not proved they wol
delivered to Bambridge.
Cod nor, he was clerk, and says, he had r&
peateil directions, from time to time, to take Mr
Castell's security as soon as they came ; bt
says, there were but two taken ; there «si
1,000/. 1,000/. and 2,000/. but he only ad-
mitted of 1,000/. and UyOOOl.
ile says, that the bonds were taken d€ bim
essCf in their language, which was only to h
t^en in order for an enquiry ; one was talDtaMj
and cancdkdi the other was only de toiesM
I Triat of Vmiam Acton. A. D. 1199. {[462
I ^JVQliwwiie, that all the charts find them i^iHy ; if they ^, yon will find
^' tlii was taken in the penalty of them guilty.
•VL 4Im> .k«« ftk^ «k..««« :- fi*.* IV.- C/tfrA:. Gentlemen of the jury, answer t*
2^».2ll^ ?.5J *^^^ your names. (Which they did.)
"J J«(jment lor 100/. they take honds ^ ^.^^^ Who^ihall aay for you P
TP«re other witnesses say, that the cus- rL^l a^ „-.„ .^..l^ ?
rf^tod th<t tBe wme man may haw cferit. Are the defendanto. or either, and
•iioo for eoe mm, aini judgment for „,,i^^ ^^„ o,j„y „, j^^^ ^„.,jy y"""' «««
r-y«positiTely that the two last bond. ^'"'«»"- N«>tG»»y-
r takea de bene e$te. Upon tbia acquittal, Sir. Kettleby moved tb«
"^ But the Court would not allow tbe-iame ;
'^ the Chief- Justice aaid,* be wat only to try the
'."* ' iasne, and that the application was proper
takin&f
fctttaa it does not appear he had
^ of the small- pox heing there theoj
iditw not sufficient to convict him: «i^„« ^ k„ „,u ^f ;.«— •— j • nV
toBtmbridge, if Bamhridi^e had notice »^rf' ^ "^y/"' of coos|Mracy, and aU he
mmm k. J riT- |. r . ^^i """ """^'^ could do was to record t le verdict.
•W€f had this difiteraper, that he was «-^«v%.
f estchin^ it, that he desired not to go Upon 3 February following, the appellees ap*
if he did carry him af^erwanls, against peared in Court, and having^ given a rule upon
t,MdCastell did catch this distemper of the poMteUf which they then produced, and no*
;Md he died of that distemper, then he body appearing to say any thing against them,
f* Tbe appeal depends upon the^e cir- they were discharged. Iwange pro Appellatis.
■6W. I take it in point of law, they ■
H ooDcur; if they do not, you will not * Strange's Reports, p. 857.
rbe Trial of William Acton, Deputy-Keeper and Head
Turnkey of the Marshalsea Prison in Southwark, for the
Murder of Thomas Bliss, late a Prisoner in the said Prison ;
it the Assizes held at Kingston-upon Thames, for the County
f Surrey, before the Hon. Mn Baron Carter, August 1 :
George II. a. d. 1729.*
Wednesday, July 30, 1729.
lation was made for all persons con-
ittend.
Irraigns, YoU good nen that are
ed to enquire, &c. answer to your
d save your fines.
William Acton, hold up your hand.
B did.)
You stand indicted by the name of
Lcton, of the parish of St. Georefethe
ce. for the murder of Thomas Bliss,
How say you, William Acton, are
f of the murder whereof you stand
IT not guilty ? — Acion. Not Guilty.
How wiK thou be tried ?
By God and my country.
'^— ■ » .III — .— ^
iieCases immediately preceding and
Clerk. God send you a good deliverance.
On a motion, his Trial was fixed for Friday.
Friday, August 1, 1729.
Proclamation was made for information.
Clerk. Tliou the prisoner at the bar, these
men that thou shalt hear called and personally
appear, are to pass between our sovereigfii lord
the king and thee, upon tbe trial of thy life and
death ; therefore it', tbou will cballono;e them,
or any of them, thy time to speak is as they
come to the book to l)e sworn, before they are
swin'n.
Mr. Strange^ (Counsel for the Prisoner.) My
lord, I hofie you will indulge the prisoner to
come to the inner bar.
Mr. Baron Carter. He may come.
Mr. Baron Carter, Call over the panuel.
(Which was done.)
Mr. Baron Carter, There w^ ^ ^V xJck^'yax'^
463]
S GEORGE II.
in that pannel, so you may chaUenge who you
will.
Acton. NOf my lord, 1 shan't cballeog^ any.
JURT.
John Sigffins,
Thomas Bandford,
Wi Ilium Brown,
John Walter,
Robert Patten,
James Wellbelo?ed.
Thomas Cole,
Miles Poole,
Robert Parkhurst,
Vincent Hollis,
Charles fiuckland,
William Goswell,
Clerk, Hold up your hand. (Which hedid.^
You of the jury, look upon the prisoner, and
haarken to his cnarge. He stands indicted by
the name of, Sec, (prout in the indictment mu-
tatii mutandis.)
Acton. I desire the indictment may be read
in Latin.*
Mr. Strange, I desire Mr. Serjeant Baynes
may be here, before it is read.
Mr. Baron Carter. 1 have staid an hour al-
ready, 1 can*t stay any longer.
Crier, make proclamation to keep silence
upon pain of imprisonment. This is a trial for
lite and death, and 1 shall commit any one tliat
don't hold their peace.
Mr. Harding, William Acton stands indicted
for the murder of Thomas Bliss. The indict-
. raent sets forth. That John Darby was keeper
of the King's Palace-court at Westminster, and
had the custody of the prisoners there.
That William Acton, during the time he was
servant of the said John Darby, was employed
in and about the care and custody of the pri-
soners there.
That the said William Acton, being a person
of an inhuman and cruel disposition, did on the
Slstof October, in the 13th year of the late
king, cruelly, barbarously , and feloniously beat,
assault, aud wound the said Thomas Bliss, then
beiiv a prisoner under the custody of the said
Darby ; and of malice aforetliou:*ht did carry
the said Bliss into the strong room, and put on
irons and fetters of great weight upon his legs ;
and the said Bliss was exposed to the damp,
and wet, and cold of tlic said room ; which is a
dangerou!*, damp, noisome, filthy, and an un-
wholesome place.
The indictment further sets forth, that he
put on an iron instrument, and on;^ine of tor-
ture, upon the head of the said Thomas Bliss,
called tlie scull-cap; and also thumb-screws
upon his thumbs ; and that he remaine<l there
three hours under all this torture and torment.
At the time of the i in prisoning the said Tho-
mas Bliss in the room aforesaid, he knew it to
be damp, noisome, and filthy ; aud consequent-
ly very unwholesome.
That during the detention of the said Thomas
Bliss in the said room, by duress of the impri-
sonment, by being assaulted, beat and wuundiNl,
the said Thomas Bliss became lanjfuid, and
contracted such an indis[>osition, and ill habit
of body, that he languished ; and, by reason of
this duress, died.
• 8m f oI. is, p. Xi99.
Trial of WilUam Acton ^ •[
^ The indictment condodes, tiiat he did i
niously, voluntarily, and of malice albretbos
murder the said Thomas Bliss.
Gentlemen, the prisoner has pleaded
Guilty ; and if we prove him Guilty, you
find him so.
Mr. Manh, J have the honour to be «
sel for the king against William Acton, the
soner at the bar. The offence is murder ;
nobody can be guilty of murder, but by beL
person of a malicious and cruel nature,
law determines all diflerences between all i
jects ; and by the laws of this land, the 1
and person of the unfortunate debtor is liab
imprisonment till he pays the deU ; and
law takes care, that gaolers aud keepers of
sons should have a particular encouragen
and defence against the persons that c
abuses to them in the capacity of a gao
and on the other hand, the law takes care,
they shall not tise their prisdners inbumai
or cruelly.
The nature of all custody is to enswer
the debt owing, or injuries clone ; and the f
son is to be kept safe there, till justly deli?e
in Court. Where a person is condemned io
action where judgment is had against h
then the gaoler is to keep the prisoner in a
custody, but not to use any inhumane tn
ment.
Thai, by the common fate and inequalitj
bnman afrairs, mankind cannot be alike in pc
of fortune, and it must fall to the lot of mi
to become insolvent ; and it wonld.be very bi
for these of the unfortunate, when they arei
duced by the confinement and miseries ol
gaol, to be made more miserable by the crue
of the gaoler ; who ought to treat his prisuni
with lenity and humanity. Bliss was put
gaol, and was there kept for a suiall di^bt.
The indictment takes notice, that Darby h
the custody of the gaol ; and that Acton a
his servant, and stood in his place ; and p<
formed the sauie as Darby ought to have doi
That the prisoner at the bar, by a longtn
and series of cruel and inhuman usage, m
treated the deceased (i would not be hard op
a man in his circumstances ;) 1 may say wt
the law allows, that he being under Darby
servant, assaulted Bliss, who was a prisoner 1
drbt under his care, aud prosecuted that, '■
putting him into that place, where he woe
not have put his swine, or other beast
A place so dump, in which were so mil
noxious humours, that any one that was |
there must be iu danger of death, not onlyfh
the noxious vapours, but from the want ut ad
(N)vering at top ; and from its being so reon
from the sun, that it could have ro influec
upon it, and must for want of it grow noxw
even to infection.
To m:ike misery more miserable^ he puth
there without bed or bedding.
A bed would have kept him warm, but
was denied that, which is seldom denied ef
to criminals and GonficUi norwpuldhetfi
,'1 jt^
Jw tke Murder ff Thomas Bliss.
A. D. 1729.
[466
ccoM cMnfbrtefentf ttraw ; Irathewas
icd fi^MD the liberty of looking: out for
\ng to retierehim from the injuries of the
ru wrenl timef rery htnlly used ; he
bemt with a most terrible iDstrument of
on, a boll's- pizzle, that his clothes were
9 be cut off nin boily.
s is no punish insif the body without the
ence or the mind. The prisoner sent
poor man out of this terrible place, in
id ridicule, to the lodge where be bad
y ; and there had an iron instrument
pon his head, thumb-screws on his
, that the blood started iVom histhuroh«i.
another instrument, called a collar, put
is neck ; it was ?ery far from being
it there made an impression that the
lainly appeared : he haf! a load of heavy
, worse than any yoke of serritude;
!9e instruments were (ixed on him, he
ers put upon his lejrs, of great weight.
leo were the fetters put on for ? To add
Bliclion of the man, ami to shew the
of the prisoner, I have already roen-
that he was a prisoner for debt*: they
lot be loaded witli fetters, upon any pre-
haterer.
•di, by aD old act of parliament,* where-
of aeoounts were found indebtcil to
iodpal, and are imprisoned, and refuse
mt. they may be ironed : but this is an
, dlauaed lAw, and being in a particular
tedcs all others. Lord Coke takes no-
t it ts not lawful, that prisoners for debt
NMnmon law should be put in duress,
indictment does not say, that it was the
I of his immediate death ; but it would
!n better that one of those instruments
an end to his life, that he had expired
icse cruelties : his death would ha? e put
to him and them together ; for e? ery
mid rather choose to die immediately,
be so punished, when death must be the
ence. But though he surrired them,
ds remained ; the man soon died, and
W9 that it was the cause of his death,
icunent charges, that the prisoner killed
irdered him. Jf we prore the facts,
.11 justify that conclusion ; and then
I submit to your lordship, if it is mur-
fa gaoler brings a prisoner to his death
M, it is murder ; and the law in such
gies it to be malioe prepense.
i IS one thing I should have taken no-
that in case of the death of any prison -
law requires the gaoler to have the co-
inquest to sit upon the bmly, to enouire
e of his death : I don't find tliat was clone.
^ard. May i( please your lordship, and
itlenien of tbejury, 1 am counsel of the
de. If a gaoler, or the servant of a
kills a prisoner by duress, I take that to
ler ; the reason of the law is plain : by
* Westm. 2d. Sec 2 Inst. 381,
. XVIL
thd constitution of this country, a prison b only
for the safe custody of the prisoners till ined or
dlschari^ : if that is turned into cruelty, it is
contrary to the law ; and he must answer for it.
If Bliss came to bis death by Acton, if that
usage was the occasion of his death, I must
conclude, as in the indictment, that he is guilty
of munler. To shew you, gentlemen, that Ac-
ton used him in that barbarous manner, we shall
shew, that the place he kept him in was unfit
for any human creature ; it was not defended
from the vicdeuce of the rains and seasons,
which made it moist and damp, and very un-
wholesome. He was kept here without a bed ;
this might be the oct^asion of his death ; but if
he bad force used upon him afterwards, thero
can be no reason to doubt it.
We shall shew y^^u that he had actual force
used upon him. ue hsd a cap of iron fixed on
his head, and a collar of iron on his neck, so that
he could not open his jaws ; even his sustenance
was forced to be pulled into little pieces, for it
was impossible before to get it into his mouth,
which was occasioned by the weight of his coU
lar. The man did address himself to a person,
who condescended to chew it fit for him to get
it into his mouth.
Besides these irons he had thumb-screws on
his thumbs, and the blood gushed out of them ;
besides this, he was beat with a bulPs pizzle
and a ro|>e, and was black oil over. Not con-
tent with this, the prisoner at the bar stamped
upon his belly, till tlie swelling was so great,
that his clothes were forced to be cut off his
body.
Further, to he more barbarous, be pot him
into fetters so strait, that they made an impres-
sion on bis legs, and eat into the skin ; which
occasioned a wound and mortification in bis
legs. This was the usage of the prisoner to a
poor man who was only to be kept in saftf cus-
tody by him. If he did not die immediately,
but languished uf his wouniVs, and then died of
them ; that will be as much chargeable upon
him.
if we call our evidence, and prove the eas^t
yon will find htm guilty : that he feloniously,
and of malice aforethought, assaulted and mur-
dered Thomas Bliss.
Mr. Trigg. A person confineil for a very
small debt, to have all those Engines of torture
up<m him, is contrary to law.
Mr. Ward. It is set forth in the indictment,
that Darby was keeper of the prison ; therefore
it is proper to proceed to prove that first.
John Wilton sworn.
Mr. Marsh, What is your nanie ?
WiUon. John Wilson.
Mr. JifarsA. Have you been sworn ?
Wilion. Yes.
Mr. ^farlh, Do you know the Marshal
prison ? . i .
Wilson, Yes, I have been a prisoner the
ever since April 1726.
xMr. Marsh, Who was the keeper ?
Wilson, John Darby.
Sll
sea
re
•A
461^
8 GEORGE tL
Blr. Murtk. Do yoa know tbe*pruoMr«t
tbe bar. WiHiam Acton f-^Wilttm. Yes.
Blr. Mftrsh. In tbeyfiar 1726 ivas Mr. ActOB
coDCiTned, and in what maoner ?
WiUoH. Headed as chief turnkeyt Mid sne-
ceedifd one Borleic^h.
Mr. Marth. What is the nstare of tornkeirP
Wilion. He acted under Mr. Darby, in tak-
ing care of tbe prisoners.
air. Marik, Aranaint my brd, and the jmy,
if yoa remenober Thomas Blits?
Wilton. Yes.
Mr. Baron Carter, 1 most pat yoa in mmd,
you have only examined to the year 1796.
Mr. Marsh, How long did he (Acton) conti-
nue under Mr. Dartiy ?
Wilnm. I can't justly say how loog ; till
Mr. Darby farmed out theffaol.
Mr. iJfarM. How long nad it been farmed
#otr
Wilton. I beliere it had been fiuraed out a
year, more or less.
Mr. Marsh. When was it fiurmcd ootP
Wilson, I belief e in May irS7.
Mr. Ward. You ny, yoa beUtre it waa
ibriiiedootuil7Sr s wbolookcaceofthepri-
Moers then ? Who in May 1787 1
Mr. Baron Carter^ You need oolgoao fbr;
|iJ» any part of tlw year 1797. to the death of
Bliss. ^"^^
Mr. Ward. From what do yon know ha
trastorakeyr HowtonffwasheaobelbvelTf7f
WiUon. He was so the time I waa comaul*
lid. I was committed in 1796.
Mr. Ward. Yoa belief e he dk! continoa as
<ueh from 1786 to 1787 f'^Wibom. Yci.
Mr. Ward. Did Adoiiaot?
Wilton. Acton dkl act. 1 seldom saw Darby
(pere.
Mr. JUanh. Gi? e aa account what condition
Bliss was in.
Wilton. When I was committed a prisoMr
hi 1786, he was then pot in theaiek ward ; a
little before the act passed, toprefont frifoiooa
and f ezatious arrests, there was a draiii{;ht
made of four prisoners oat of each ward, to be
pal hilo the pump-ward, and I and Bliss were
antongthem: be then appeared to be a sad ob-
ject, very hune, and I took an opportunity to
aak him the cause of it, and he told me that ha
attempted to escape ; but being seen by a wo-
man, he was discovered ui the attempt, and fell
down and dialooated hb ande; and that one
fingers and Pagv» took htm, and brought him
into the gad again, who be said had beat him.
Acton, I desire, my lord, he may be asked,
if he ever saw Bliss in irons ?
Mr. Baran Carter. Answer that.
WiUon, No, my lord.
Acton, Please to ask him, my lord, if Bliss
aver fdl off the top of the house.
Bf r. Baron Carter, What say you to that f
WiUon. He did.
Mr. Baron Carter, Hesaid so before.
Acton, Please to ask, my lord, if he ever
saw Bliss beat, or confined in the strong room.
WUtan. I nef er saw him beat.
TfudffffUUam Acton^ ^ \
Aeknu Please to ask, my lord, if he aa^
behaviour to the prisoners in general.
Mr. Baron Carter. What say you to tli
WiUon, 1 have seen people beat, and
irons.
yLv.Ward. By whose directions f
WiUon. 1 bdieve by Acton's.
Mr. Ward. Have you seen Acton ^trik
sooers?
Wilton, I have seen him strike prii
with his list.
Mr. Ward, Did you see Bliss with a
instrument on ? — WiUon, No.
Mr. Baron Carter, What behaviour di
ton use towards bis prisoners ?
WiUon. He behaved very well to %om\
osed others ill.
Mr. Strange, Wiison^s evidence is
say, bdng only the declaration of tbi
OiAsed.
Mrs. Anne Bliu sworn.
Mr. Marsh Did you know Thomas ]
Mrs. B/t<f. Yes.
'Kx, Marsh. Who was he?
Mrs. Bkss. My. husband.
Mr. Marsh. Do you remember the
when he was put into the strong room ?
Mrs. Bliu. He was a prisoner in the
ahalseaTor a snuiU debt.
Mr. Marsh, Did you use to visit him f
Mrs. Blits* I went to him every nigfa
mominff.
Mr. Marsh, Acqttaint my lord, and tbe
with every step as to tbe treatment of
hosbaod.
Mrs. Bliss. My husband went to mal
escape, and waa betrayed.
Mr. Ward. Tell tlie time.
Mrs. Bliu. He and six or seven othen
to break into a baker's, and Acton came ii
Mr. Ward. NaoM the time.
Mrs. Bliss. I cau't be sure when it wa
one Muilimns^ when be was put in, was
and was collared.
Mr. Marsh. Were you by f
Mrs. Bliu. 1 saw it next morning ; 1
into the strong room, and Murlimus hi
iron collar on, bat my basband was onlj
tered.
Mr. Marsh. I confine my question o
your husband. What room \vas he in T
Mrs. Bliu, Tlie strong room.
Mr. Marth, Describe it.
Mrs. Bliu. It is a room floored with b
and there is a hole big enuii&rli to put in
of beer, and I saw him in there throu{
hole.
Mr. Marsh. How long did he lie ther
Mrs. Bliu. He lay tiiere Uiree weel
tbe winter-time.
Air. Ward, You say, there is a little
big enout^h to put in a quart pot?
Mrs. Bliu, Y es, there is, just on the t
the door.
Mr. Baron Carter, Stay a little, I can*
one word. You say you could not go in
room, but looked through tbe hole?
iSJ JbirikelfhtTiirnfTkommBIUi.
A. D. 1789.
[47a
Jfr. Bum Cnfer. Did y»v obnrre the
■itiQurtheroomf
Wn,BBu. The floor wii very dampr, and it
' WiMfld tfaatQifrht, and had rained in.
1b.Butm Carter. Waa it co?eretl at top ?
JtLBlug, Yea, bat the rain cameintEroogfa
lb JSv/er. Were the inma beayy he had
•Mlra. Bliu, Yea, they were.
Jfc ITardL What tine of the year waa itf
Jk filifi. It wat much about Ghriatmaa
Mr, Ward, How long a^^ ?
fta.Blua. About thiee montha after he wii
had.
Mr. ITorriL What time did he flnt |(et iet*
|Hl?--IIra. Btitt. I cauDol tell the mouth.
Mr. Wmrd. Cmi*t you bo certain aa tothe
Im? .
Btin. I OmkilWMalterChrittmaa^
Mt,Ward. How long aiucef
Jb. Bliia. Tt waa much about thrae yeara ;
i «a maeb about fbur yean aince the first
lit ho uUempted to oKape. He went to
■It n caeape a aceond tlnae, by a rope,
taltm«rtluoe montha aftar the firrt at-
bMamid tlMU Acton pureued after him, and
Mir. VivA Do you know thia of your own
When I came the next day to
, Nidwb aaid. there ia the bitch hia
Anton ordered noe to be cidied into
_ r; and aaid. Damn you, madam, I
vAbam yoa hafare juatiee Ladd, for bringinip
Atapa in your huaband : Damn yon, I will
Mte you; and he put me into the place
Vint tbey put the irona hi, adjoining to the
h%L and kept me there an hour. Whilst I
«i mare, he aent for my husband into the
Nl^aad nut on the scull-cap, collar, thumb-
iBios, ano fetters.
Mr. Ward. Were they all put on at the same
iMf^Mra. mm. Yes.
Mr. Wmrd. Who put them on?
Mil. Blin. They were put on by Acton's
Mr, Ward, Did you see him order it P
Mia. BliMU 1 heard him order it, 1 did not
mit
Mr. Ward. Did you see them ou your has*
Mrs. Bliis. I did. My husband said. As
ym are a man, I hope you will use me as
neb ; Acton aaid. If you will confess who
ksaght YOU the rope ; and ordered him into a
^ihee celled the dungeon ; and when he was
VHt there, sent for me, and said, I will now
Wfe you before justice Ladd ; but hariug a
fimid there, who interceded, I was let go out
tfthe gaol, and came the next morniog, and
hmd my husband in the dungeon ; he spoke
bme through the hole.
Mr. Ward. Did yon see him ?
Mrs. BUu. 1 did not see him, but through
the bale. Ho said. This place, and the cruel
usage I hafo had, will he the death of me.
He waa best so, thst his clothes were forced to
be cut off, and his body, stomach, and bdlj^
were Tery mach swelled.
Mr. Ward. Did you see him beatP
Mrs. Bliu, I saw the marks.
Mr. Ward. When did you see him to tho
Strong Room?
Mrs. B/iff. About tiro hours after I came in,
in the mornmg ; Acton came down the yard at
the aame tioM. *.
Mr. ITanf. Had he all these irons on whea
AeloD came down P
Mrs. BiJif. He had them all on.
Mr. Wardm When weie his dothea cut off?
Mra. Bills. His clothes were cut off fVom
hia body after Nichob beat him, becanae hm
waaaweiled.
Mr. Ward'. Tou told us thatyov saw jroor
hosband, what had ho on f
Mrs. JBlMff. I saw him with the acuU-eap,
collar, and hona on,
Mr. Ward. By whoan order were they put
onP
Mra. BHu. I bMni Acton ordar them to bo
put on.
Mr. Ward. What waa he swelled with f
Mrs. B/iu. He waa awelled with the blown
that Acton had gtren him, aa my hurfmnd lohl
Mr. Fotiar. How long waa this helbre hia
athP
Mrs. B/uff. Hia ckMhea were forced to be cut
down ; and Acton told the nurse of the aick
ward to toko a deal of care of him.
Mr. Foster. Reoollect what year thia waa in P
Mrs. Bills. It was about two years andthreo
quarters ago.
Mr. Bkkardaon. When he was in this place,
ithe Strong Room) did you see any blood about
lim^
Mrs. B/iuf. He bled at the month, and he
toM me, that it was caused by having the iron
instrument on his bead : and the blood flowed
firora under the naUs of his thumbs.
Mr. Harding. Did you make any complaint
of this usage?
Mrs. B/i'u. A friend of mine did.
Mr. Harding. How long did he continue in
the Strong Room?
Mrs. Biiu. Above a month at one time, a
week at another, and another time about three
days.
Mr. Harding. How long before be died P
Mrs. Bliu. About seven or eight months be-
fore he died.
Mr. Richardson. Did yon see your husband
beat?
Mrs. Bliss. He wns black an any thing with
the marks of the butrs-pizzle Acton kept. Ho-
fers and Nichols knocked him down with a
unch of keyK, as I was toid.
Mr. Richardson. From the time you saw
him in this condition, till he died, how long waa
it?
Mrs. Bliss. About seven or eight vaw^'
1
471]
S GEORGE IL
TMofWUUqmAaon^
ttW
Mr. Richardion, When did he dif ?
Mrs. fi/isi. H e died on Ladj - day.
Mr. Rtchardion. What condition of health
ifras he in ?
Mrs. B/ttf. He was a pretty while in the
sick ward, and then was remoFed into his own
ward.
Mr. Bichardion, How longf after this usage
was it before he died ?
Mrs. hlUi. Se?en p^ eight months.
Mr. Kichardion. Was it in summer-time?
Mrs. Bliss, It was at the beginning of sum-
mer.
' Mr. Baron Carter, I must be forced to tell
you, not to ask the same questions over and
oFer again.
Mr. Richardson. What was the ocoasidn of
bis death?
Mrs. Bliss. 1 Terily believe the cruel usage
of Acton and Niohow ; for be said to, me a
little before he died, I must soon leave you,
and nobody is the death of me but Aoton avd
Nichols.
Mr. Baron Carter. The fint witness, Wil-
son, put it right, when he came in April 17S6,
to Lady -day 1727 1 you must keep her to that
time.
Mr. Harding. What time did you see him
in fetters ?
' Mrs. Bliss. Seven or eight months before he
died.
. Acton, My lord, please to ask her if I was
by when the scnll cap was upon her husband's
liead.
Mr. Baron Carter. What say ^ou to that ?
Mrs. Bliss. I saw it on in the Strong Room.
Acton. Please to ask, my lord, it he was
not well afier this, and went into the country
to work.
Mr. Baron Carter. Answer that question ?
Mrs. Bliss. He went to Enfield to work, but
was so ill he could not work ; he did not do
three hours work there.
Acton. 1 desire she may be asked, if he
bad not ^t a violent cold by working.
Mrs. Bliis. When he came home lie said he
was very bad, and i got him half a pint of wine,
and put him to bed ; he continued very ill for
a week, keeping" his bed some part of the time,
and some part sat up ; and then desired me to
get him into ihe hogpithl, for that he could not
recover it, and Acton was the occasion of his
death ?
Acton. Please to a&k, if any body was by,
when her husband told her 1 was the occasion
of his death.
Mrs. Bliss. He made the declaration as I
was sitting on the side ot the bed.
Acton. I desire she may [>« asked, if he had
not strained his ancle by a fall from tbe house,
when he attempted to escape.
Mrs. Bliss. V es.
Acton. Please to ask, my lord, how long it
was after her husband died, before she com-
plained to any body that I was the cause of his
death.
Blrs. Bliss, 1 never complained to any bo;]^'.
becaoae 1 had no money to, go to fe«v, nor
friends^ nor any body else to itand by qie.
Acton. Please to ask who she Mged «itk.
when her husband died.
Mr. Baron Carter, Answer that.
Mrs. Bliss. I lodged with my aisler.
Acton, Please to aak her, if she ever cM-
plained to her sister.
Mr. Baron Carter. Whataay you to that?
Mrs. Bliu. No, I did not.
Acton. Please to ask, if she complaiiiad'l*
her father or mother.
Mrs. Bliss. 1 had no father, and mm to mf-
mother, I did not see her in half a year ; it wm
above a quarter of a year after my hiishaB4*i
death.
., AcUm. I desire she may bo asked agail^ if
she did not tell her mother.
Mr. Baron Carter. Did not you tdl yov
mother?
Mrs. Bliss. No, l.had a diffierenoe witb mj
mother, on account of her marrying a
husband.
Acton. 1- desire she may be asked,
waa tbe first time of her complainings
it was voluntarily, or whether she was wfukSm^
and by whom, and whereto.
Mr. Baron Gorier. You hear the qupjitieoi
Mrs. Bliss, One Mr. Newland, an
ance of my father^s, knowing how my hi
was used, sent for me.
Acton. 1 desire she may be atkad,
a^ where.
Mrs. Bliu. To his own house.
Acton. Please, my lord, to aak how long i
Mr. Baron Carter: Answer that.
Mrs. Bliss. 1 believe half a year.
AcUm. Please to ask her, my lord, wImb
31r. Newland sent for her, what he seni' ler
her for ; and whetlier he did not say there weo
money for her.
Mr. Baron Carter. What sav you to that?
Mrs. Bliu. Knowing how barbaroukly my
husband was used, he said he would have me
right his death ; and ordered me to go to a
gentleman about it ; but said nothing of money>,
Acton. Please to ask, my lord, if she did
nut tell Hester Long she was to have money
to swear her husband's death to me.
Mr. Baron Carter. Did you tell Heater
Long so ?
Mrs. Bliss. No ; my sister cdme to me, and
said, Mr. Newland desired tt» see me ; and she
said, she believed there was money for me.
Afterwards I saw Newland, and he told me to
go to the gentleman.
Ac ton. 1 desire she may be asked again^
if she did not tell Hester Long, she was to have
money to swear her husband's death to me.
Mrs. Bliss. No.
Acton. Pleas^ to ask her A if she did not
tell Hester Long she was to hive 50s. or 3/.
Mr. Baron Carter. 1 must take cara you do
not ask her questions to injure herself.
Susannah Dodd sworn.
I
Mr. ^arsh» P^dyou sec BLss ip. prison?
47JJ
Jiir the Murder nf Thomas BtUt.
A. P. nm
[474
Un. DmU. Yes, a huodred times, and once
ioiroofl.
Mr. Marth, What time did you see him in
iraoi?
Mn. Dodd. He had them on the next day
ddt he was put in the Strong Room.
Mr* Martk, What time of the year ?
Mil. Dodd. Between winter and mimaier.
Mr. JlcrsA. How long before be died ?
Um^Dodd, Aquarterofa year.
Ilr. Marth, Do yon know when he died T
Hn. Dodd. I was not with him.
Ir« Marsh, When [qu. How] do yon know
kM f HaTe yon been told when he died ?
lEn. Dodd. 1 knew he was dead, beeause
)m wife eanie tad aid he was dead.
Mr. Baron Carter. Was it the first or second
tine be made his escape he was out two or
Ibmuiemha?
Adon. My ferd, he was not ont then at all.
Mr. BaroB Carter. I will call the woman
Mrs. Blui bmng called.
Mr. Baron Carter. Was your hosbaod twice
i|Ml,oroncef — Mrs. Bias, Only once.
. Mr. JMorsA. What gentleman did Mr. New-
hrissod you to P
Mr. Baron Car<^. It is not usual to ask
frinus after a wimess has been examined,
m snhr called again to explain a Ikct.
Mr. llorsA. It is only to clear up what she
hm >kcady given in evidence.
MiSb BiisM, Mr. Newland, an aoqaaintance
4mj ioher'a, only sent for me.
Mr. Marsh. How long since ?
Sin. Bliss. Three weeks last Sunday.
Ni. Baron Carter, Who is New land ?
Mn. Biiss. He lives in Soutliwark.
Mr. Baron Carter. What is he?
Mn. Bliss, He is a baker.
Mrs. Dodd standing up again.
Mr. Ward, When did you see him last in
fHir
Mn. Dodd, About three months before he
led.
Mr. Ward. When did he die?
Mn. Dodd, 1 can't be certain when he died.
Mr. Ward, What condition did you see him
it?
I(n. Dodd. I went lo the strong room to
cary him some victuab, and he UZl thumb-
■Cttws on his thumbs, irons on his legs, an
ina cap oo his head.
Mr. Ward. Had he fetters on his legs ?
Mrs. Dodd, He had very large fetters on his
^p, and irons cross his legs too. I spoke to
mm through the hole.
The said Irons being produced and viewed
ky dM Wiiaeas.
Mr. Ward. Are those the same you saw upon
■■?— Mra. Dodd. They are.
tha Iron called Sheers being shewn her par-
i
Mr. Ward. Look on tbem, bad he any other
irons on bis legs than those?
Mrs. Dodd. lie bad the slicera cross his
legs, and fetters on besides. The deceased
asked me to give him relief, and desired me to
chew his victuals, for his mouth was sore; and
1 pulled it to pieces, and fed him.
Mr. Ward. What was the occasion of hia
mouth being sore?
Mrs. DiSd, He was confined two days in
this condition.
Mr. Ward. How do yon know it ?
Mrs. Dodd' By being sent backwards and
forwards of errands.
Mr. Ward. Did he speak to you ?
Mrs. Dodd, Yes, he. spoke to me several
times.
Mr. Harding. Could he chew ?
Mra, Dodd, i don't believe he could chew.
Mr. Foster. How long waa he in this coo*
dition in the Strong Room ?
Mrs. Dodd. A day or two.
Mr. Ward. How long ago?
Mrs. Dodd. Five or six months ago.
Mr. Ward, How long ago is it since yon mw
him in that condition? Recollect yoiUBelf,
bow long ago it migbt be.
Mrs. Dodd, I can't tell exactly.
Mr. Ward, How long was it after he wav
turned out,' before it was reported he was dead F
Mrs. Dodd, About half a year.
Mr. Ward. How long was it then, before ho
was in that condition ?
Mra. Dodd, This was about a quarter of •
year before.
Mr. Ward. What time of the year was it P
Mrs. Dodd. It was about Southwark fair-
time.
Mr. Ward. Did yon see him bleed at the
mouth, or any where else?
Mrs. Dodd. There is a great hole on the
side of the door, and I saw him screwed^ and
saw him bleeding at his thumb nails.
Being again shewn the Iron instnmieut called
the Sheers.
Mr. Ward. How was it used ?
Mrs. Dodd. It goes between the legs.
Mr. Harding, What sort of a place b the
Strong Hoom ?
Mrs. Dodd. It is a lar^ room, and strong.
Mr. Harding. Desenbe the room. Is it
damp?
Mrs. Dodd. It is not damp ; it is dry enough*
Mr. Harding. Is it covered at top?
Mrs. Dodd. It is leaded over at top. I gave
him drink through the hole by the door, whil«
he held his head backward ; he couki not take
it himself, because of his hands beiug confined.
Acton. Please to ask, my lord, if he waa
well in heal 111 when he came to lodge at the
house \vliere she lived.
Mrs. Dodd. lie was only lame in his legs ;
he waa well :i8 to every thing else.
Acton, Please to a«k her, if ahe did not
sec him the day after he came out of the
Strong Room.
475]
3 GEORGE 11.
Trial of IVdl'uv-i Acluii,
C47fi
Mr. Baron Carter, Did you «ee him the day
after he came out of the Stronjif Room ?
Mrs. Vodd, No, it wrs two days after.
Mr. BaroD Carter. Did you see him when
bis clothes were cut off* ?— Mrs. Dodd. No.
Ruth Butler sworn.
Mr. Ward, Did yoa see Blics in the gaol p
Mrs. Butler, I was a prisoner in 1795.
Mr. Ward, How long did you continue a
prisoner?
Mrs. Butler, I continaed till I was dcarcd
by the late act, about 14 days ago.
Mr. Ward, Did you see Bliss ?
Mrs. Butler. I did.
Mr. Ward* How long was be in prison,
while you were there? Give an acconnt of
what you knew of Bliss.
Mrs. Butler, He was a prisoner, I cannot
•ay how lone; ; but 1 saw hiro going over the
bouse, and he fell cvflf; and was taxen on the
other side, and brought in again ; and was put
in the Strong Room by Acton, Thomas Nichols,
Rogers and Psgc.
Mr. Ward. Did you see ActOD put bim
there?
Mrs. Butler. I saw AetXMi oonoemed in
putting him there. He kept bim there till the
other prisoners were locked up, and then
brought him into the sick ward, tad Aeton beat
bim with a ball's-pizsle there, and stamped
upon his bodj sereral times, be (Bliss) lying
upon the ground. He had burt bis leg with
the fidi, and thought it was broke. He con-
tinued in the sick ward that night, and the next
day they carried him into the lodge, and there
put irons on.
Mr, Ward. What irons?
Mrs. Butler, They put on long irons, that
kept his legs to a vast extent.
Mr. Ward. When was this f
Mrs. Butler, The next morning after he fell
in going o?er the bouse ; in tbelatter end of
Fel^ary, or the beginning of March.
Mr. Baron Carter, You say it was the latter
end of February or the beginning of March.
Was it the first time of his escaping ?
Mrs. Butler. Yes.
■ Mr. Richardson. Did you see bim after he
went out of gaol ?
Mrs. Butler. I never saw him after he went
out of gaol.
Mr. Ward. How long was he out of gaol
before he died ?
Mrs. Butler. I donU know.
Mr. Ward, Recollect the last time you saw
bim in gaol ; when was it?
Mrs. Butler. I cannot say.
Mr. Harding. Did you see him when he
left the <raol ? How was he ?
Mrs. Butler. He was very bad, Tery ill ; 1
beard him often say after this usage, iiiat the
bruises and hurts Acton ga?e hiro by stamping
U|K>n him, would be the occasion ol bis death ?
Mr. R*chardion. Do yon believe that those
bruises and thai iU usagt ww Iba occasioo of
bis death?
Mrs. Butler. 1 verily believe they were the
occasion ot lii'j death.
Mr. l<ichar(him. Wlint Nlate of health was
he ill when he left the ^uttl ?
Mrs. Butler, in a very ill state of heakh.
Mr. Baroir Carter. For my satisfiustion ui
the jury's, give an account particularly wbro
he was beat with the buirs-pizzle.
Mrs. Butler. He was first beat with the
.bull'N-pizzIe ; then flung upon the ground, sod
stamped upon.
Mr. Baron Carter. Whereabouts did Ados
stamp upon him?
Mrs. Butler. Betwixt his belly and bis
stomach, and upon his belly.
Mr. Baron Carter. How many times did
you obserre him to stamp upon him (Bliss) ?
Mrs. Butler. Three tiroes.
Mr. Richardion. I will ask you one questiou,
Mr. Baron Carter. I can't admit you to ask
any questions now ; 1 asked tbem for my ow%
not your information.
Matthew Boom sworn.
Mr. Ward. Did you see the deceased ?
JBacon. Yes, seyeral times ; Isawhimwhei
be was sick, and when bis legs were swdlsi.
Mr. Ward. Whatstate of health waabeiof
Bacon, He was very sickly and rery lams;
bis legs were swelled, and tie complained oi
the bruises that be bad received from Acteo.
Mr. Ward. Did you see him in the SCraig
Room?
Bacon. I was not a prisoner then; I was a
prisoner from about the latter end of April ti
Micbadmas following, and then 1 waa dis-
chaiged. He was sick great part of that time^
and said he should do well enough, if not for
the bruises ; and that that rogue, Acton, had
done that to bim which he should never re-
cover.
Mr. Harding. What state of health wu bs
in when you \et\ the prison ?
Bacon. He was sickly.
Mr. Richardson, Do you know the Strong
Room?
Bacon. Yes ; it is standing at the south-
oast part of the gaol ; and is a terror to all
those that behave themselves ill ; and is not fit
to put a human creature in, to remain there.
Mr. Ward. Did you see him after you were
discharged ?
Bacon. I was discharged about Michael-
mas, 1726, and went to the fifaol to see bim
between Michaelmas and Christmas ; and lam
positive he was never well while I saw him in
gaol.
Mr. Ward. Did he complain of any thing?
Bucon. He complained of pains in bis sidc^
which he attributed lo Acton.
Mr. Harding. What sort of a place is tha
Strong Kooiu ?
Bacon. It is a square, as big as the sqnara
betwt*eii the posts in the Court; and has oft
light but through a little hole on the side of tht
door ; and it is damp.
Mr. Harding. Is it unwholesome?
4
477]
fur the Murder of ThovMt Bliss.
A. D. 1729.
[478
BacoH. It 11 undeniably to all mankind un*
vbolesoiiie. I bare seen people dead in it.
Mr. Baron Carter. What ia the priaoner'a
geaeral character in the gaol ?
Btfcm. A great many gire him an ill cha-
ncier, hot I neTer had any abuse irom him ; I
lensr deaerTed it.
Mary Gillii sworn.
Kr. Ward. Do you know Bliss ?
Mn. Gillii. Yes ; I was a prisoner nineteen
■Mhs, and remember Bliss very well.
If. Ward^ GI?e an account of what yon
hm m relation to Bliss.
Mill Gillii, The account I can give is this :
ik ■■& was almost perished for want, and with
a rape bad attempted to escape, beinsf tied
man hia middle ; but being discovered, the
Xwaa cut, and he fell into the yvrd on tha
«side^ and received damage in one of his
kp; and though he could not stand, Aaton
M his servants brought him into the lodge.
Mr. Wmrd. When was it?
Mrs. Gillii* In an evening ; about the be-
gissiiig of Mardi.
Mr. ITar^ Who were Acton's servants P
Ihattkem.
Mis. Gil/if. Richard Pfe^e,Nwholsand Bo-
pK Aoton was there himself; thev pulled
mi bawled bim about, and Acton beat him with
iWr^pinle ; he stood upon one leg, ibr he
prii aat aet the other to the ground, and cried
isiftr mercy ; and they askS bim, who^ve
kJBlbeioper He said Thomas Crabb. Then
fkij pal him in a hole, a little place under the
ilmi, and he lay there a little while ; and
vhabecame out, they ironed him on one leg.
Il Wmrd. Do you believe this usage was
Ikesmnion of his death ?
Mis. Gillii, I believe in my heart he died
ta want of food, as well as by being so used.
Mr. Richardion. Did you see his body ?
Mis. Gillii. i never dul.
Mr. Harding, They wanted him to confess
who brought the rope r
Mrs. Gi//if. Yes ; they did ask him who
traegfatit.
Mr. Harding, What time was it?
Mit. Gillii, It was candle-light ; I came
•at of one Carey's shop.
Mr. Ward. What state of health was he in
wWa he left the gaol?
Mrs. Gillii. 1 came out before him. He
Wis sick in the sick ward when I came out.
Mr. Ifonl. What irons had he on r
Mil. Gillii. I never saw bim but with one
Mr. Ward. Did yon see him beat ?
Un. Gillii. Yes; I did stand 1^, and saw
^ heat ; and ha Ml down through weakness
tai the hurt.
Mr. Harditif. Did yao ever hear him com-
iMi of the iqinriea be received ?
Mn.Giilii. I never went near bim, nor
•Mhhn.
Kr« Hta^smg* How many blows did you see
■incciva?— Mm. Gi/(iiL 1 cannot tall.
Mr. Harding, How long^ were they using
him in that manner ?
Mrs. Gillii, They were half a quarter of an
hour using him in that manner.
Mr. Harding. Was Acton by ?
Mrs. Gillii. He was present at the same
time he was beat ; but lie was beat mostly by
Nichols.
James Abbot sworn.
Mr. Ward. Did you see Bliss ?
Abbot. Yes ; I saw him drubbed, so that aa
man was so drubbed.
Mr. Ward. By whomf
Abbot. By Acton's servants.
Mr. Ward. With what >
Abbot, With a rope and a bull's- pixzle.
Mr. Ward, Was Acton by ?
Abhit, I can't say tliat.
Mr. Ward, Who were they that beat him f
Abbot. He was beat by P^ge and Nichols.
Mr. Ward. You say they beat him with a
ball's-pizzle and a rope? — Allot, Yes.
Mr. Ward. Was Acton in the prison tlien P
Abbot, Yes, he was.
Mr, Ward, Was Acton in the yard f
Mr. Richardion. Did you see Bliss in the
Strong Room T-^Abbot. No.
Mr. Baron Carter, Will you (speaking to
the prisoner) ask any questions ?
Actom, My lord, please to ask the question,
whether I ever used the prisoners ill during tha
time he was there.
Abbot, I did see him beat a great many peo*
pie, but can't say who.
Matthew Brandon sworn.
Mr. Ward. Did you know Bliss f
Brandon, Bliss was a prisoner when I cama
in, in 1726 y 1 went there on the 16th of March,
1726.
Mr. Ward. How long did yon continue
there ? — Brandon, Six months.
Mr. Ward, Did you see Bliss ?
Brandon. Yes.
Mr. Ward. What condition did you see him
in ?~-Brandon. He was a cripple.
Mr. Ward, From what time do you count
the year ?
Abandon, From the 35th of March ; I can-
not be sure whether it was 1725 or 1726.
Mr. Trigg, What manner did you see his
legs in?
Brandon. I saw one Tery much bruised by
the irons that were put on. There was a mark
about as big as the top of one's 6nger.
Mr. Ward. Was his leg swelM ?
Brandon, It was very much swelled.
Mr. Ward, Did you see both bis legs P
Brandon. I took it to be the left leg.
Mr. Ward. Was his anole strained ?
Brandon. 1 don't know any thing of the
stiaining of his ancle ; it vras much about the
ancle.
Mr. Baron Carter, If it was his leg thst be
hurt ; that's an answer.
Mr. Ward. That remains upon thev to
prove. Had the slua baaa broke ?
479]
S GEORGE II.
Trial of Tkonutt Acton,
[480
Brandon. The akin had been l>r#ke, aod it
was swelled above aud below, awl there was
ihe mark of the iroiK
Air. Harding. What sort of mark was it ?
Brandon. It was a cirooilar asark.
Mr. Harding. Did be watke any complaint
to you ?
Brandon. I me him part of a mag of ale ;
and as he was relating bis grie?ances to me, he
told me be desired me to see Acton prosecated,
in case be died.
Mr. Hardin^. What did be tell you ?
Brandon. He told me be was ?ery barba-
rously used by Acton, and be was the occasion
of his death.
Mr, Harding. How long was it before you
left him in gaol, that he made this declaration ?
What time of the year were vou discharged ?
Brandon. I went out in August.
Acton. My lord, please to ask, bow long it
was after filiss's death before be made com-
plaint.
Mr. Baron Carter. What my you to that?
Brandon. I made no complaint of this but
since I have been at home ; I have been beyond
the seas.
Acton. Please to ask, bow long it was be-
fore be went out of England, after he was dis-
ckirged.
Mr. Baron Carter. Answer that.
Brandon. J was discharged in August, and
went abroad in about two months time ; and it
is three months since 1 came home sgain.
Mr. Ward, Did you ever see any irons upon
Bliss? — Brandon. No.
Mr. Ward. Did you ever see him beat ?
Brandon. No.
Mary Kenwood sworn.
Mr. Baron Carter, 1 beg yon would let us
know the time better ; I should be glad tu be
satisfied as to that.
Mr. Ward. Give an account of what you
know of Bliss.
Mrs. Kenwood. I never was a prisoner, but
carried him victuals.
Mr. Baron Carter. You knew Bliss ; Did
you see him in irons ?
Mrs. Kenwood. Yes, mv lord, once. After
bis fetters were taken off, i saw bis legs where
the irons had been on ; and the irons had eat
Tery deep into both his legs.
Mr. Baren Corf er. Did you see the irons on?
Mn. Kenwood. I saw tbe irons on in the
yard, but that was before.
Mr. Baron Carter. Was the soreness of his
lesrs oocaskmed by the irons?
Airs. Kenwood. Yes.
Mr. Baron Carter. Upon what occasion did
you go to him?
m%. Kenwood^ I went to carry him vic-
tuab and ototlMa. When 1 saw him in the
sick ward, tbe small of bis legs were swdM
at big as the calf.
Mr. Word. When wan this r
tiOM.
Mr. Ward. Qo on.
Mrs. Kenwood. I'he akin Was broke, and
his legs were sure and raw in tbe placca where
the marks of the irons were.
Mr. Kichard^on. What did you carry bim ?
Mrs. Kenmood. I carried him a pair of sisdc-
inffSf but he could not put them on.
Mr. Ward. Had he no stockings on ?
Mrs. Kenwood. When I went to him, hs
had no stockings, no shirt, only a blanket
Mr. Ward. Whst sixe wei« thn stdckngs?
^n. Kenwood. Thev were my huslMuul's
stockings, but of a smallsiae.
Mr. Ward. If his legs had not been iWldl-
ed, might he have got them on?
Mrs. Kenwood. I believe be might.
Mr. Ward. Did be make any compfaunl l9
you?
Mrs. Kenwood. He said, he was aftaid lis
should never be his own man again, by tbe Ql
usage be had received in the ffaol.
Mr. Ward. Did he say who used him illf
Mrs. Kenwood. No ; I did not ask him.
Peter Purchace sworn.
Mr. Ward. Did you know Bliss whn ia
prison ?
Purchace. Yes; he was a prisoner some
time before I was a prisoner, in tbe year 1789 1
and he related to me the usage be bad hsd.
Mr. Ward. When were you a prisoner f
Purchace. I became a prisoner tbe Ml
of March 1736. I was discharged same tiM
before he was.
Mr. Ward. When bad jroa the disoooll
with him?
Purchace. In May or June.
Mr. Ward. How long did he oonliBae is
gaol?
Purchace. He was there 10 months duriof
the time I was there ; be told me he was nsi*
ed, and
Mr. Baron Carter. You must not speak 1»
hear-say. What he tok) you don't sigaify*
Did you see his legs?
Purchace. 1 did ; and the marks of tbe ironi
were upon them. His legs were swelled veiT
much both of them ; and one continued swelt
ed until he went out of the gaol.
Mr. Ward. What was the occasion of tkc^
being swelled?
Purchace. It was occasioned by wearklf
the irons.
Mr. Ward. Were they raw ?
Purchace. They were not raw ; but I iur
the aarks of the irons upon them.
Mr. Ward. Did you see his thumbs?
Purchace. I did ; and he told me, thai he
had been thumb-screwed.
Mr. Ward. Did you see any marks vftk
them?
Purchace. I saw his thumbs very Usok, aai
much bruised shout the joints ; and be told m0$
he had worn the scull -cap.
Mr. Ward. Did he complain of any
Pwxkaee. He cemphuned of his lideb
Mr. Wmd. WbsB did be go oat?
481]
Jixt ike Murder of Thomat Slits.
A.D. 1739.
t48»
Fmnkaee. I cmnnot tell the exaet time ; I
wnt out a little before him.
Eimond Comrnins sworn.
Mr. Ward. Did you know Bliss f
CamminM. Yet.
Mr. Ward. Did jou see Acton do any thinff
Cmmufu. No; bat he told me, he be-
icfiibe had got- his death by Acton.
Mr. Ward. Did yon see any irons on him ?
CamminM. I saw them ; they were very re-
wkaUe; he declared to me that Acton put
Ahiob, and beat and abused him.
Mr. Ward. Did you see his leiifs ?
Cmamiat. 1 did ; and his leg;s were like a
kMie's fetlock cut with a clog.
Mr. Ward. What time P
C— iiM. I cannot say.
Mr. Ward. How long before his death ?
GoBMMs. A considerable time; when he
ikd I was abroad in India ; I was there two
jMi and three months. I was by when Acton
pst BUn and some others in the Strong Uoom ;
mi 1 beard him say to Dliss, t thonght I bad
joa enough already , but 1 will give you
Mr. Ward. What kiud of a place is the
ftsagRoom?
Cmmuu. I ha? e been twice in that prison ;
iiaiiry damn, and if it rains never so little, it
MBBB Mroogii.
Mr. Ward. Had be any bed ?
CoMUfu. No ; there is no bed allowed to be
Miiss in.
Xr Ward, Is there any place to let in the
lirtr light :^
Cmhuiu. There is a small bole, about twelve
■cki, on the sidi> of the door.
Mr. Ward. Was it proper to put a human
CMMsrein?
Cmmins. No; 1 have seen hogs lie in a
kllwjplace: the common sewer runs uuder-
■tth It, and the drain from the vault.
Mr. l¥ard. Is it unwholesome ?
Commitu. It is very unwholesome.
Edward Murfey sworn.
Hr. Richardnm. Did you know the de-
ytarfey. I did ; he was in prison when I
Mr. Richardson, What condition was he in P
M vou see him ?
iur/^. Yes ; I heard him say that he
U so much beating in the lodge, tiiat be could
in« lacovcrit.
Mr. Riekard$on. Did yon see any irons upon
Uairjty. I taw him in the Strong R< om
*ilb haadcuffii on his hands, auU large fetters
%ImI«.
Ik. SkkardMoa. Did yon see his legs?
%letaditioa were they m ?
iksr^. I taw them ; they were black and
j^s aad Ibty wert raw in a circle, and the
VOL XVII.
Mr. Rkhardton* . Did be complain of any-
bruises?
Murfey. He complained of his side<
Acton. Did he never talk of falling off the
house, and that he was hnrt.thereby ?
Murfey. I never heard him.
EitU Roberts sworn.
Mr. Ward, Did you know Bliss ?
Roberts. 1 saw liim in prison, and taw tfaa
fetters upon both his legs.
Mr. Ward. Did you see him alWr he went
out? — Roberts. I can't say.
Mr. Ward. Did he make any complaint tp
you?
Roberts. lie told me, that hit legs were
very bad, and desired me to go to Mr; Daiby
about it ; which I did, but was afraid to speak
in the prison, seeing people used so ill ; and I
spoke to him at tbe door, and Darby said —
Mr. Baron Carter. What Darby said it no
evidence.
Mr. Ward. Upon what account did yoa go
to him?
Roberts. I went to Darby to desire the fet-
ters mi^lit be taken off; or otherwise, tliat
those mij>ht be taken off, and bigger pnt on ;
for his legs were swelled so much, that they
hid the irons ; the iron hung almost out of
sight on one side.
Mr. Ward. Did he shew yon any other
marks:* — Roberts. No.
Mr. Ward. Did you see him in the Strong
Room?
Roberts, I did see him in the Strong Room ;
and I saw several more there lying upon tha
ground, coming to Kee him after work.
Mr. If are/. What sort of a place is it ?
Roberts. Tliere is only one place to look in
at, a hole on the side of the door. It it very
dismal to look into.
Mr. Ward. Was it dry ?
Roberts. I can't say. At the same time Blist
was tliere, I saw another man with an iroD
about his nrck in the same room.
Mr. Baron Carter. Would you (speaking to
the prisoner) have me ask any questions ?
Acton. No, my lord.
Mr. Richardwn. It was insinnated, that the
man went to work. We shall produce the per-
son where he went to work, to shew he was not
able.
Wm. CowUy^ master carpenter, sworn.
Mr. JlfarsA. Did you know Bliss?
Cowley. 1 remember hid coming out of gaol;
and hiier he came out of gaol, he came to work
with me.
Mr. Manh. What trade are you ?
Cowley. A mriienter.
Mr. Jilar$h. Gire an account what state of
health Bliss was in when he came to work for
you ?
Coi^'ley. I hail a job of work at Houthgate,
and came to town generally (»n a Natunlay
night ; and he came the day after, and said he
was coming to work for me ; 1 said he wat too
:2l
[
f8S] S GEORGE IL
weftk, and be btd btCter bt ported rod blooded
before be went down. I leh him in town, and
wben I oame asain fraoi tbe ooantry be eame
ta roe ; I asked bim. How be did then f He
aaid, Pretty hearty. I and tbe rest of tbe men
went down ; and oo Monday be came down
afler ns to Southgate. 1 aaked him* How be
Sot down, and if he came to work ? He laid, I
on't doubt but I shall, in i^raoe of God. I |^t
him aone mutton, and mnde broth of it $ and
he endeaTOured to work, bat was rery Kttle able,
and did nocbin|f that day. lYie next day he
came to work, and plained three boards ; ami
then said, lie conld not work any lonprcr. I
asked him, What be would ha?e ? Oire me,
aaya be, a dram of Ckmeva, or brandy, one of
wbieb tber got ; and laid him down, and threw
their dotnes ofer him. I asked him, If he
conld eat any thing f He said. He beTieved he
could eat some bacon ; but when h came, he
oenld not tuneb a bit. I said, Ctat yea eat any
thing else? He said, No, nothing. 1 then
apoke to the woman of the house la get bim
augar-sops, which she did ; but it did him no
ircNMl ; be grew worse and worse. I asked hhn,
If I should send to the apothecary ? He said.
No : be attempted to come np, but ooaM not.
On Saturday ni^ht I came to London ; I asked
bim. If I should leare any thing P* He saki. No ;
but desired his sister might be sent fbr ; and I
think I seat for her, and my son, Thomas, sent
for tbe apothecary. And wben I came back on
tbe Ronday, he was worse, and the people
were uneasy with me for bringing a sick man ;
SD^ I got tlie man that carried my timber, to
bria^ him to London ; and he was piit into the
hospital ; and on the 2Mh or SGtli of March he
died.
Mr. Marsh. Were yon with him in (he hos-
pital ?
Coiolry. Hearing be was abused, I went to
see him. He had hoTes in his legs when he
came down to me ; and his words were, Mas-
ter, that roffue, Acton, and those other rogues,
are tbe death of me ; this was about a month
before he died.
Mr. Marth. How lonsr was he with you in
the country ? — Cowhy, Abont nine days.
Mr. Marth. Did he complain of any thing ?
Cowley, About a mnntli before he died, ne
complained for a week totiether.
Mr. Baron Carter, Did tbe deceased com-
plain Of bis side ?
Cowley, He told me, that they took and held
him by the legs, and his head knocked on tbe
ground ; and kept him chained in irons.
Mr. Baron Carter, Did he complain of his
aide f ^
Cowley, He complained of inward bruises.
William Ctfw^, junior, sworn.
Mr. Marsh, Acquaint my lord with what yon
know of Bliss.
W. Cowley, Afler he came oat of prison he
canse to see for me at my lodgings.
Mr. Monk, DnXtm aH yoo luww in yow
^ WilUgm Aa&n^
m
W, Cowley. Wben BfiN mime to aw ft* me,
I met him in Croo4ed-lane, and askdi him,
How be did ? He said, As well as can be ex*
pected ; for the bruises I bare receired from
those rogues, I shall aever recof er.
Mr. Baron Carter. Did yoo see Ma lega?
W, Cowley. Yes, and they were bkck^ Mie,
and yellow, about the calf. W hen he eama Is
SottUigate, I asked him then how be did ; bt
said, As weft as can be expected ; for 1 hata
got those broisea I shall nerer reooter.
Mr. Marsh, Tell how he was at Sovtbgatef
W. Cowley. After he bad don# work, he WM
up to bed, aad said, I hM I shall d§ iMff|
and puttin{» his hand to hia broaat, saidP be #as
rery sore. After he begsn l» work, he fUMed .
We had a fire Dsade, and laid him doH^i, aid
asked him if he courd eat ; be aaid if w<e amdd
get him some bacon ; bnt when h lima ha
could not tooch it. Then wt got him mm%
bread and ale, and be co«ld mm jMt ItikM it
down, and brought it np again, and eiOm|daiMd
of pains. He was afterwarda btood^d, ind tbt
bkiod was of ad manner of eotomns, aad migliy
watery.
Mr. JIfarsA. DU yo« see any marim kl ii
his legs ?
W, Cowley. He saki those roguea hid glim
him bruises he should nerer recorer.
Mr. Marsh, Did be name any body f
W. Cowley, Yea^ he named Acton, sBsd i
little fellow be had shewn to ma when at thi
gaol.
Mr. Baron Carter, When he waa gahf
away, what did he complain of?
W, Cowley. He said, I shall never o¥cmmt
the blows received by these Tillaioa ; and I
most hiy my death to Aeton and theae mgms.
Samuel Parker aworn.
Mr. Marsh, Did you know Thomaa Blhi?
Parker, 1 knew ThoMaaBlias when hecsae
oat of gaol ; I saw him come down to SaaA-
gate to work, hot he was titter fa go mM. Hi
worked with me, and lay dowD oo the bmeh
seven or eight times.
Mr. Marsh, Did be complain f
Parker, He complained of his stomach sad
legs, and said that bis stomach waa beat la &
great degree, and that Acton bad put aa iiaii
on his legs, whidi extended them a jpaii^ sid
put on an iron on his head, thumb-screwa ii
his thumbs, so that the bkwd gnabad ottt iltba
end of his thumbs.
Mr. Marsh. Did you see bis legs?
Parker, Yes; they were swelled io, ifli
he was forced to uear old idipiiere-; amftbif
looked of many ookrars ; and thera waaa^bom
in one of them big enough to put jMf
thumb in.
Mr. Marsh. What condition waa he ro ?
Parker. In a very weak condition, not fltiP
work.
Mr. Marsh, How long did he woili 7
Parker. About a quarter of an ban%iBi
tlieo aaid, Master, I oau't work aay mac«; tt
then laid down, and they made a fire ibr hil
M^ ._
for tht Murder of Tkomai Bliu.
Mr, Hank. Htd lia any apprebeDuafi of
Perktr. Me wA, lliai the bruise* and the
Umib h« bail rrr^Tcit were ihe acc«iioii of liJs
4Mti, UMl he klioulil never recnvi.T tliem, arii
hprd TOme ^•■ix\ person or oUier wuuUl [iroie
ctf» dwm fur it.
Hf. Bamii Csrfcr. Now, you have hrard
OwlfekTCe aj(fiiii«t ynu, by siilceu witnesses,
jwMnd upnn four defeoee.
idM. NotiTjihaiiitiding what the people
Wtlwurc aipiinit me, I hope lo mnke it ap-
fMTlbal I Km Inniwenl.
Ybommj Bliu wnfr a prisoner in December,
A. j>. n«>.
r«
d tie suriDDteil 111 escape by a rope, lo
Co*et a iiDiise; uut lomepeiipleseciughitn,
M) off the bouse on the other side, whicb is
U f**4 hi|rh : I neol mund, and fouud hitn ly-
■( an the uroiind ; I Inoli hiin up hy the arm,
wdaaknl liim the rMuti why he <li<l so ; he
■U, be wu poor, and be cuald not gel out,
mhootKHnebody would assist him: I put him
iolB the aick ward, to b« taken care of, and al-
bvcd him two-^Dce p«r day ; and bad a sur-
r\n bftthe hiB leir, niiich he had hurl in the
Re conliuuetTii
o the pump ward;
4tm cnaitahle, but for souie misdeineanaur
aM turned oul ; it was for cheaiine the olher
■onMisoriheward. AtterliewasdiBcharged,
It (ontiiiurd three weeks nt one Gresbam's
Mr the Uariliahe* gnie, and was fuddled se-
wd dayi. lie weot into the oounlry and
mi uji Huaio, and said he bid catcbedcoM,
«kni iuU) tlu! hoa|Ulai. and ibere died of a
*m. My lord, sinM his fidl, be never had
iMbani on, aod be liieil near twelve iiionibB
wt I have several wiliieiisea ready lo prove
*Mfe«U.v.4lioh Iwdteall.
Samutl ll'tllMk sworn.
jMaa. ftift^ Ml acfiouul of what usage Bliss
M ia tbc fratm.
AaWccij, lattor OHtliiaf a UMg neuse.) My
M, I may br a little slntlleil, havlug; Dav«f
he* ha^c mkIi au auibance bcfiire, tb«r«lore
4mm a hltla time t<> recnver wysclf.
lir, Bataa CM-ier. \ on miut prapow wkat
VMisttt j'lti would hate a«ii«d, lu tbe Conn.
idM. Please lu H>k, my lard, if ttlihs whs
I Wllbt (apadtio lu'tMt.aMwliat usage hesaw
•kabecaoM back.
IWbcA In Mareb. 173.% or 17^6. I went
ti iH Mr ti-t/..i 4'mI ilM/ir- waMRB outcry.. He
:ii>d AcloQ went into
..] linMighi Blisa alouK
iiuily used, but saw
'V.
l*i™
a>li, if be SI
fe Mr. Vino tilt Iv waaioalinaillu theuck
Nv aoA a InitA uo<l myself gave a afailbi^
iiipliuiiBil be woaiUw-
Acton. My brd. please to ask, if he di<t ui t
camplain of his toga and back by llie ftll.
Bultock. I saw biro in a miMrablo coinlil'on.
Mr. Oaron Carter, Tba qiipslion wns. if ha
did not complain of bis leg and back hy Ilia
fall?
Bullock. He complained of hia ankle and hi*
Acton. Plaaaa to aak, my lord, if there wu
any irons on, should he have aeen them.
Mr. Baron Carter. [ ibink Ihsl quebliun will
not he ao niuch for your service ; you may
have it asked if you pleaaa.
Hobert Hnltaa wmam.
Acton, Pleaaelo ask him. taj lord, wbetlier
he remembers the escape of Bliss, and when,
Ilolma. I know uf Bliss's breaking otit into
Ale ami Bottle yard, and saw AcUid and Ro*
gers brin^ liim into tbe priaou, supporting bin
upor) their shouldars.
Aclon. Pl«ase to ask, if he had any iroaa on,
or abuse |;iveu him.
Haim*. He had do irons on, no nbuu
given.
Alton. Whatdidhacomplainor?
Holmct. He only complained of hii legs.
Acton. Wliete did he go aller ho was dil*
charged ?
Uolmet. He want aod lodged at one Gre-
sbam's, and I drank with bim very often in an
eteniog, and he and 1 look a walk together,
ami he Iheu dedared to me, Ihal Acton bad
lucd Uim very well, and if it had not been for
him, be must have perislted before be eat dii>
charged; and when be came backlo Mr.Or«B
sbam's. ho lold aa, Ite was la go U> work at
Southgate, ikbiob he dkl, and staved there nine
days; and when he catoe back, lie said he had
caiched an ague, aod look a sweat; and two
or threa daysaller thai weni iolo ^. Tlrantae'l
Hospital. 1 met Ulisa's wife on ibo bridge
and she said
Mr. JlisriA. I apprcbeod wttat aba said can -
not be evidence.
Mr. Baron Carter. I tell you bow Ht ; iha
is ajfovil witivas lo ctmlradict herself.
Mt. MarsL. You csu only ciilf ibia wiine&i
lo invaliUale berteBitaionn'. \V hat did she say
about Iter buebMwI'adeuIi ?
Mr. Baron Carlir. She has said, tbe bbwa
he received from dwtoo were tbe oaeaaioa of
his death ; and Ihe wiueu majr ba aaletd ta
ivbat she «aid as lo thai. Did you aeaaay
irons u^a Blisa, altar Ibe hll from tbm hauae 7
Hoimt*. No.
Mr. Baron Carter. Was he id iIm iMrang
Uolmet. No, be was in the sirk tvard.
Alton- Pleasa to ask, my turd, bow long
b« was ID prisan after be came out of the sida
ward.
Mr. Baron Carter. What aa^ jou la ibal
que-ilion f
hidn**. Seven oceiglit ouinlha.
Aclaa. Whottiouditiuaof baaWi wu.b«inP
Uolmet. Very good.
4673 5 GEORGE U.
AetoH, Pletse to aik, if be e?er complained ^
tf any tbinfr but hU hme leg.
Hoimei, I ne?er hetrd bim complain of any
^iog else. He iraa at work aereral times in
my rtM>m.
Mr. Ward, He did complain of one le^yon
•ay ; did be not complain .of both F
HolmtM, No, be never did.
' Vir. Harding. Did you nefer' see him fet-
tered alter be aitemptcU to escape ?
Holmes. No, I never did.
' Mr. Baron Carter. Before be went into the
tick ward, was be in the I'Kl^e?
Holmes. I came down into the lodge with
him.
Mr. Baron Carter. Where was be carried
next?
Holmes. He was set down there.
Mr. Baron Curler. You did not see him in '
Uie yard ? — Holmes, No.
Mr. Baron Carter. The witnesses say, that
hewaftfirM bniupbt iuto the lod^e, and there
had irons put on, and then was carried into the
yard, and there it was that all the witnesses say
he was beat.
Mr. Marsh. I did not hear that. '
Mr. Baron Carter. It is so said.
Mr. Marsh. When did be fall from the
lu)nse f
Holmes. About seven or eight o'clock at
siffbt.
Mr. Marsh. What time of the year was it ?
Holmes. 1 can't say ; 1 believe about March.
Mr. Baron Carter. Let the time be whenever
it wili, it must be taken after the fail oft' the
houRe.
Mr. Marsh. When did he fall ?
Holmes. As near as 1 can guess, in March
next .coming, four years ago.
Mr. Marsh. You were speaking of bis con-
tinuing well when he came out of the sick
svard ; when did he come out ?
Holmes. About two months after March.
f Mr. Marsh. Were yon a prisoner then ?
Holmes. No, I was a prisoner before.
Mr. Marsh, You were discharged then, and
Jived in the prison ?—i/o/mf I. Yes.
Mr. Marsh. Had von not the privilege of
the gate ? — Holmes, \ was no prisoner.
Mr. Marsh.. Had you no privilege granted
you ?
Holmes. Yes, by Mr. Darby. 1 had the
privilege of lodging in the prison ; he gave it
me gratis.
Mr. AfartA. When were yon discharged ?
Holmes. About four years since, by the Act
of Insolvency.
Mrs. Blki^ being in Court to confront Holmes.
Aeton, I desire he may ffive an account of
the conversation he bad witn Mrs. Bliss.
Holmes. I met Mrs. Bliss on Saffron- bill,
and she told me, slie thanked God her husband
irasdead.
Mr. Banm Carter. Dkl abe tell yon what
wasihe Mcaaion of his death ? What did she
lellyottheiUedoff
Trial of Wiiliam Acton f
Holmes. That he died of an ague an
in St, Thomas's hospital. I met ner on
da\ last.
Mrs. Bliss. My loni, I did meet 1
Tuesday, but never said any such, words
was no such word spoke.
Henry Chapman awom.
Acton, Don't you remember Bliss's i
to escape?
Mr. B:g^n Carter, 1 would have y
one tiling for granted, that he fell off the
ask Any thing that was the consequence >
Acton, Please to ask him, if he sa
after htr fell off the house.
Chapman. Bliss whs found in the ^
Bottle yard, and was broughi in ; he b
his leg, and as so(»n as be came, he n
into the sick ward ; Dr. Draper was s
to bira, and used what means he t
proper.
Mr. Baron Carter. Tell me if you si
when he wrnt back to the lodge ?
Mr. Chapman. He was carried to tl
ward directly. I saw nothing of him
was brought into the Hick ward.
Aclon. My lord, Cbapnian uas notoo
Mr. Baron Carter, Bliss must coo
the lodge? — Chapman, Yrs.
Mr. Baron Carter. Where does I
through the y ard to the lodge ?
Chapman, 1 saw nothing there; but
carried to the sick ward, and the duci
called out of bed to him.
Acton, I desire he may be asked, wh(
did not order the doctor to come to hio^,
him have three- pence [two-pence, p.
per day while he was sick. — C/iapman,
Mr. Baron Carter. How long did 1
tinue in the sick ward ?
Chapman. I can't tell how lon^.
Acton, Please to ask him, if hedi
member Bliss's being constable of the
ward, and drawing garnishes for his
prisoners.
Chapman. Yes, I do remember it ven
Acton. What condition was Bliss in w
was brought out of the sick ward ?
Chapman. He was healthful, but com]
of the hurt of his leg.
Acton, Did von ever see any irons on
Chapman. No.
Acton. Did you see him in the
Room ?^-Chapman, No.
Acton, Please to ask, my lord, if he
usually see Bliss every day.
Chapman. J saw him frequently.
Acton, Did you ever hear him comp
having irons on ?
Chapman, No ; but he desired me t(
interest to get him the charity money,
him out of the gaol.
Acton. Please to* ask, If he did not g
Bliss into tlie sick ward, and if 1 stamjie
hit breast How long did be cootiniw m
after he came cot of the sick want f
t
fS9]
ftfr the Murder of Thomas Bliss.
A. D. 17M.
[490
CAapmau. It was, to the best of my me-
Hr. Sirmnge, Was it a great or a little
while I*
Ckapmam. It was a considerable time ; bat I
amh be ccrtaia.
ActoH, Please to ask, whether he never saw
It Mr. Gresham's ?
Otfman. I drank with him there.
How was he in health there?
CkfBMn. He was well in health ; and he
" ^ *' ^e was as well as efer he was in
IkMk.
Mr. Baron Carter. Who is Gresham ?
Cktpman, He k<*eps the Dolphin ale-honse,
m the Kaol door.
Mr. Baron Carter, You saw him when he
CHwfrom Southffate ; tell me whether he was
ifUinhMlUi then?
Chill wail He was well then ; but he com-
fUnf m atitcb in his side, and that he had
■Mienty and that work did not agree with
Mr. Buroo Carter. Was he well in health
iM?
Omfmmm. Hewas well in health, but wished
l9|amto the hospital.
Mr. Baron Carter. Did he complain of any
Mvaiie of Acton? '
Gb|mMfi. Neferio hislife.
AtUm. Be phased, mv lord, to ask him as
lltheiilronff Room ; whether if he was to be
Itcfcad op, he would not rather choose to be
Utfd up there, than in the wards.
CI^MMn. Yes.
idea. Whether prisoners have not chose to
]|jelhm, rather than in any other room ?
CImiiii. 1 have heard several people re-
idaa. Is there any common sewer runs
i4ef the Strong Room ? — Chapman. No.
Mr. Marth. i ou say, there is no common
mtr under the Strong Room ?
Clspaurii. I am sure of it.
Mr. Marsh, Have you no place or office
■ the gaol?
Ckapasan. 1 draw beer for twelve-pence a
Ind, which Mr. Halsi^y gives me ; and vic-
Mand drink from Mr. 'WiUon, and since he
U, from Mr. Acton.
Mr. Marsh. What Halsey ?
Chapman, Halsey the brewer.
Mr. Ward. You say, you heard Bliss com-
|Imb after he was at Sontbgate ; What did he
ttsplainof?
Chapman. He did complain of his legs swell -
ill, and other pabS| and wished to be in the
^ital.
Thomas Fletther^ surgeon, sworn.
AcUm. Mr. Fletcher, pray tell the Court,
iftcr Bliss fell from the nouse, whether you
biked after him in the sick ward.
Fletcher. 1 visited people in the sick ward,
Iri the deceased asked me to look at his leg;
i hi kiok upon it, and saw a large tumour,
0A Med tho beat mcaos 1 cookl. I went to
my own ward, and got some oils, and used
them first, and then applied a plaister. I often
asked him where his |«in was ? He said, he
felt no paina but in ibat part. In about 14
days time I took off that plaister, and put on
another, and then he was removed into another
ward. I was theu releaaad, but I went to aee
him now and then ; and in the month of Fe-
bruary or March following, I asked him bow
he did ? He had either a rule or stick in bia
hand, and pointed to his ankle, and aaid he
should never be well as long as he lived, I
afterwards mei him in Westminster-ball, and
he to!d me, that he was released by some cha-
rity money, through Mr. Acton's means.
Mr. Bsiron Carter. Who was the occask» of
his beinr let out ?
Fletcher. He always gave Acton a good
won! ; and saki, he was released by a gentle-
man coming there with charity- money.
Acton. 1 desire, my lord, he may be atked,
if he (Bliss) had any irons on?
Fletcher. I never saw him with irons on.
Mr. Baron Carter. When he came out of
that room, and was put into the sick ward, had
he any irous on then?
Fletcher. He bad no irons on.
Acton, Please to ask, if there was any
bedding.
Fletcher, I saw some bedding, and asked
who lay there. They did not tell me the par-
ticular man, but told me a gentleman,
Acton, Please to ask him, as to the Strong
Room, if it was damp.
Fletcher. I do not think it was any ways
damp.
Mr. Ward. You say there was a great
swelling upon one of his legs; was it not
eat into? — Fletcher. No.
Acton. Please to ask, if there was any con-
tusiou of the other leg ?
Fletcher. There was not.
Acton, Did you ever see Bliss in irons ?
Fletcher. I have seen him with fetters ou.
Mr. TrifjX' Do you remember the time of
Bliss's malunff his escape ? — Fletcher. Yes.
Mr. IVigg, Were there other people put in
irons?
Acton. I desire he may be asked, whether
he ever saw Bliss in irons, after lib last attempt
to escape f^^Fletchcr. I did not.
Mr. Baron Carter, What was Acton's be-
haviour to the prisoners, according to your
observations.
Fletcher, I never saw him appear otherwise
than very handsome, and very well to thenu
Thomas Whitford sworn.
Acton. I desire, my lord, he may be ukad,
if Bliss did not attempt to escape.
Mr. Baron Carter, It is a;;reed. ^Tell me
how be waa after his fall ofl'the house,
Whitford. I saw him in prison.
Mr. Baron Carter, Tell me how he was.
Whitford. From October to February (I
was discharged the same day) he was as well
as ever.
i
40V| S^^IU}8 II.
JelO). Plcfse ta a>k >rh^ lie auJ in rata'
ir4i{/ard. lie (Blist) Haul. lUat if >l liiU ant
bKU ior ictnii, tie tliuhl^ "ut liiire gol oul of
fi^in)); jpil Le hiiuHll liiul spujie re&^ecl-
lUy uf liiui, UDil M liail tils wile.
Actoa. Dill you gu to Mn. Ulis« P
Wkilferd. I fveniui Mn. Qlus, ill tie ole-
liuuse, where she live J ; and nite ilesireil I
neuU take no uuljcc ibal ber huibnnJ nas
dead ; and inM oie, lie weul iulu tlic counlry
to work, aud tb^re cutclied imU, and was car*
ried iotoths hosplul, aiiil died o|'il; uliicli
va» thougbi ilie occajiiao of liis ilealli-
Jclon. Wbatdo you think uf ihe Strong
RooatS—H'liU/ord, II is a tjlrung Itofxn, but
tbt best roora on the tonimon aide of the gaol.
4|r. BarUD Cucfci-. l>(i jou say, it ia ihc
^Wt)
Xof|44ir«I((rnnif.
r. &itni CaritT, t remamhr the queti-
tion KhfiD BugBJM vaq tried ; it Kta ujted
w«, if be. inTuten 9r Dix ^ Von luw" I
odtiiiBd Honiu wwnst uuiTfruw fqu. aak-
ids: MatbeCatefJHi^Fgliii) ont^ iif^eak-
S^ 10 Mr. Strange]. KVbU oondtiltn of health
WM BUm in after hj^ hll F*
Walttr. Id • «m^l procan of linw be
walked atiDitt the nfl ■• (rcU u I did, and
ntJi^fteiutr. "
^Hr. &UWI Cirteri Did yon bear fliM mj
^Tthing of 4*^'
Waiter. Meter anjf thing ^.
Hr. BacoaCarter. That lanot the qiieatlon.
Ba,n voa hutrd him aey an; thing about
WaUtr. I.h^T^beaid higa maLin pniie
OfltUB.
JoA* Chape ■worn.
npiW <«. ■db W 'P'*' i*!"* •^'e
'^
' CWf. % W 1% Mry. Boo4 cowbjjoo.
"nlMt.MA4nw wiJ* fcmout
a^b^ waft in good
ȣ gW)g UW tbd
of?-
in bci
I met
ladrii
d<>o-t
tbeoc.
Jirr the Murder nj Thomas Bli'
tffif, mA Om nM, lie
4tj ind half, but llie rou
A. D. 171?^,
Hr. B«ron Corlt
ifVMiy. Tbu h
Attaoli In be the I
ChrUtiai
, « worked k J»y, or a
s rountrv wm so cold he
I did iioi tee bcr atter lui
had Mtijcbt m\A, ivhmh
VrDaron f'^rtrr. Did ynu see Bliss after
ItitU froiD tho bon«e 7
A^jf. tie lif by me four nionthB in the
QHn'i iranl.
■r. B«r(in Carter. The Qucen'swardf
JtlD^. lie nns removed fnno ihe tick iriird
■t. BaroD Carttr. What health was he in ?
DU Iw nuJie any couiplaiiU ?
F*>i^. I Defer heard liiiu lunkc any coin*
lUu, bill ot' bis ankle.
Ut. Baniii Carttr, Did he complain only ul'
fWy. It must be one leg;. He could nil
tat down at aitrhCi i and tlio other leff fua
Hr. Baton Carter.
Ti r— FdWv. I dill Mveral time*.
Baran Carttr, Did lie coronlain of any
in tl lua coniiog out if the gaol ?
Pmi^. Ue desired me to lend him balf s
pwt, txiA he would go iii irork.
AttwH. lie pleaied.my lord, toifb, irite«atv
tiB a the hiHiiiital.
fc. Bamn Carttr. What say ynu to that?
litdy. Mr«. Bliis told me her husbnnd wd«
IMv'lhtr hospital ; and I nenl into the hus-
ftA la bim, and asked hJin bov he came
■ptT ileaaid.he waaat work inihe coun-
ty, ttd piilM off his waiitcoBi, and catcbcd
Mr. Baron Carttr. What mi the prlBofrer's
|kVii MlaTioiir ?
iW^. I liwl been there ten monfha, and
Man M« any harm duue to any iirisoner in
MMter.
Stter Long snorn.
iUm. I ilnire, my lord, abe mav be asked,
' /Araa* ttliM after hecaiaeottlotpriHOn.
yk. Bsroa Cartrr. WbaX ssy ynu to that f
Mn. i.011^. 1 aiaid at the Doipliin nle-house
bMk win be came nut, ami 1 wighed bim
Mi#Mn(outi bethnnkeil me,indsi1d it
^niaf 1^ Mr. Aotou ; and (aid, God IdeM
ih.Wi^mA out. I ashed him, IF be was
' nsied aeain, what be ivnuld do f he said,
ABto »atoM tiaod by hitn. Mrr. Olin, my
aMr-fa Lnf , came there, and she said, that he
Hi n >■ I: u ever in his lite ; and on the Sa-
: i< aRer, he came to my house,
r rid, anil said to bis wife, Go
(it I must go to Mr. Cowley,
-1 ih)lh'ii{pi anri aix pence to take
H »gc" -, and Bflemnlk 1 saw hiiu in
Carttr. What M* tlie matleriritb
Mrs. Long. Mrt. BliM desired to lojp i*;03
e; which sbedld, and 4be(uld me, he^ fitN-
band wanted to see me ; anil when I went tH
hitn, lie Kaid. I^ter, I am gfdng \o leave (lie
irld : 1 taid, it was only going a lillle htSiii
Mr. Bor«n Carter. Praj (ell whether h#
iile anv complaint to van Ol'ilny tbiiiir ?
Mrs. U,g. W '
Mr. Baron Cnrler. TTbat distemjwr did tii
die of in ibe hospital ?
Mrs. Ijms. He nid no wete than that M
caichedroMM SnOlhfOte.
AcloH. I desire she may be asked, whl'lsht
heard Mrs. BlifttrfkabhntBov money >be «us
lu have in this nroscculion, and from tflintn.
Mr. Baron Carter. AAsner that qoesiion.
Mrs. Lang. I nerer heard no mure talk tifl
within these four moAlfas ; and then a messen-
(^er came, and said, there was money for Mrs.
Bliu in Soinbw3rk ; aod when site went llierb
the gentleman was not at home ; and when
•be came back, ahesaid, she should ha*elbirly
or forty shillings. I asked foi- what? She
said upon account of going to swear against
Mr. Acton.
Aclim. Please to ask, whether aomrlmdy
gave her any clulTies, and wlio.
Mrs. Long. Tlie next dny after, she gaT«i
out, that she wns to go to some gentleman ;
and I asked to whom f She said, 10 the com-
mittee, and she should have Torty or fifty
jnumds; and when she came borne, I saio,
Nnntiy, I hope you will not he so'fonliih to ea
10 lake away the life ofa man for forly or fifty
puunda. After (hat she vveotto seri^eV,
Artim. Did you not see Blin and herbrolhcr
together, and what was ihe conversation ?
Itlrs. Lang- 1 said [rp>. saw'] Anbe Blin and
lier brother together, and he cautioned ber to
take care what she did; andsheaoid she waslo
bare loily or lifty guineaa ; and he said. Make'
it up ; if you gn to Aclou, he will give you a
covnle of guineas ; and she aaid she could not
go, tor her master said sbeshonld fqu. not] take
tool. She (Bliss) caiDe and said, some time
after, she had two guineas gfven ber by otri;
of ilie gcn^emen of the committee, and ttiat
she did go and live with him in an alley by
Little Moor- Fields.
Mr. Baron Carter. Yoii talk faster than I
ato take notes of what you say ; ynu have no
occasion to ulk so much. Wbom'did youaay,
■lie said, she went 10 live with ?
Mrs Long. One ofthe committee.
Mr. Ogtethotjic. My lord, »itb humble stib'
mlHsiou, I desire leave to speak,
Mr. Baron CarfCT", Sir, von may.
Mr. Oglethorpe. Then, my lord, I dcxjrcthls
matter may be ihoroiigbtiy sifted, and the cii-
dencea may he contrimleif.
Upon whidi Mra. Bliii was called to con-
front Ueiter Long.
Hn, Blui. Whtti V went to my sister Long,,
she said, sbe would have me consider, not tor
be ruled by Mr. Newland, and if t would, alia
495]
S GEORG^ II.
Tritd of WtUiam Aelon,
[496
could go to llr. Acton and oiake it up, and he
would ffive me sompthinf^ : I told her, she
noTer hked my husband, and Mr. Jennin^
woold not for^Te rae, if I made U|i my hu8-
Imnd't death ; and she (Lont;) said ai^ain, her
hntband would not forgive ine, ami wondered
bow I could pretend to~go. 1 told her aAer
that, my master Jenuinfi^s had lent me two
guineas, and desired thti ^eiiiluiuan, where I
went to live, tfiat be would see the money laid
ont ; and gave the gentleman the money with
his o\vn hands, and his wife laid it out for me.
Mr. Baron Carter. Did you not say, tliat
you were to have 40 or .50/. P
Mrs. B/iji. 1 said no such thing.
Mrs. Long, The person that came from
Kewland said, it would be a great deal in her
way.
Mr. Oghthorpe. I desire she may be asked,
who that person was, and whether he was one
of , the committee.
Mr. Baron Carter. Who was Mr. Newland ?
Mrs. Ijmg, A baker in South wark.
Mr. Baron Garten Mrs. Bliss, I ask you,
whether you said, that Mr. Jennings told you,
that you should not take lOG/.
Mrs. Bliu. He said, if they were to offer me
100/. I should not take it, not to do justice to
my husband.
Mr. Baron Carter, How came you to leave
Jennings's service ?
Mrs. Blist. 'there were so many came flock-
ing up and down after me, that I could not live
with him. There came two gentlemen last
Sunday.
Mr. Richardson, You say you could not live
with your master, because so many people
came after you. Whom did they come from ?
Mrs. Bins, They said they came from
Acton.
Mr. Baron Carter. What they said is no evi-
dence.
Mr. Oglethorpe, My lord, I must with all
humble submission beg leave to speak. Repu-
tation is a very valuable thing ; and here is an
aspersion thrown out at random against a
member of a committee, which may affect the
characters of several gentlemen who are not
here present.
Mr. Baron Carter. There are many com-
mittees, and 1 should have taken notice if any
thing had been said of any committee of the
House of Commons.
Mr. Oglethorpe, There are many com-
mittees, as vour lordshi ji says ; there is one of
aldermen, there was also another, which 1 find
is not forgot. I would have them explain what
committee they mean ; the charge is a very
heavy one, no less than subornation of perjury,
and this founded on a hearsay, so as to render it
impossible for any persons to justify them-
aelves : I therefore desire this may be strictly
examined into, and insist upon knowing wlio
this person was, and his oaoie.
Mr. BaroD Carter, Wat there any name
mentioncfl ?
Mrs. Long. She said, one of the committee.
and the committee's spouse was to lay out the
money for clothes.
Mr. Richardson. I ask you, whether or no
she said she was to Uave two guineas from Jca-
niogs, or any one else ?
Mrs. Long. From nobody but 3Ir. Irnwip
Robert Cole sworn.
Mr. Acton. My lord, please to ask Rabat
Cole if I gave Bliss money ?
Cole. Some time after the committee
met, they had sat once or twice^ I met Mn.
Bliss on I^ndon briiig(\ and asked her, if she
had been with the committee or Acton. She
said. No ; but if Acton would give hpr 5/., slie
would nut mention any thiug of her husband's
death.
Mr. Baron Carter, How long was this before
Acton was taken up ?
Cole. About three weeks ; I canHbeccrttia.
Mrs. Bliss, I said no such thing.
Mr. Richardson. Are you subpoenaed f
Cole. No.
Mr. Richardson. How came you here, if oot
subpoenaed ?
Cole. Hearing Mr. Acton was to be tried.
Mr. Richardson, How did you know be wis
to be tried ?
Cole, I heard it by being in the 3IanbatMi
as a prisoner.
Thomas Rogers sworn.
Acton. What usage did B'iss receive after
he fell off the house at the Marshalsem P
Rogers. His ankle was swelled as big is
his calf.
Acton. I desire he may be asked, how the
other leir was.
Mr. Baron Carter. What say you to that?
Rogers, As usual.
Acton. I beg he may be asked, whether ke
was with Bliss when he was brought into the
lodge.
Rogers. Mr. Acton and 1 supported bin.
Mr. Baron Carter. This man was aecused
of beating Bliss ; I will not press the tbiog
upon him toalfect himself.
Seij. Baynes. If he thinks himself innocent,
he may be voluntarily a witness, though he
could not be obliged to it.
Mr. Baron Carter. He may be a wimess;
but don't let mc lead him into any thing tbit
may injure himself.
Acton. I desire then he may be asked, if hi
saw Bli'<^ 111 the sick ward ?
Rogers. I did ; and IVfr. Acton sent for a
surgeon into the sick ward to batlie his leg.
Acton. I desire he may be asked, if hcwai
put in irons. — Hogfr.^. He was not.
Acton. Were you by there all the while ?
Rogers. I was.
Acton. 1 desire he may be asked, if beooo*
tinned a prisoner after Bliss was discharged. .
Rogers. I did.
Mr. Ward, You are asking too many qu«*
tions.
^ lAc Murder ^TkomaaBliu.
A. D. 1799.
■ I ierin be ma; b* uked, if he ever
I kAct he wu d»chug«d.
y, I did Mebim, atid drank whh htm ;
ras -wtTj merry and wdl.
. Hoaxers, m V lord, was in the gaol ; I
nay M askea, if the iron cap was erer
[4dB
proper I
quaibOD.
eof?
<rua Carttr. Thxt
erer know t^at it i
), I nw it ibere la Burieigh'
r saw it uB«d from that time to I
■charge ; it bong up.
rard. I ask vou, vrhether you nerer
• beat wilh*lioir»-j ' ' *
t. 1 nerer mw him
bntat:
Mr.i
BIr, Baugh nrom.
. IdeureBfr. Baugfamajbeesaminad
bdoDged to thig court many yean),
W haa not aecn aacb an iustniment
kuruog felatH in the cheek.
i.' I bawE seen lucli an iuslniment naeil
people io the cheek.
J<ihit Grace awora.
L I deiire he may b« aiked, whether
I, cap was not ia the prison before I
t, Hy lord, I remember the IVIufbal-
n abore a year before Mr. Acton knew
(he iron cap hong up there, and I eo-
be me of it. There was on act in king
ft time for bnnring fdons in the cheek ;
m naHl Ibr that porposc ; and iliat wa«
iy gaol, liU withu ibese Atc years and
I, Please to ask iftliere were not irons
pdr — Grace. Tlieae irons were.
Vdrd. Huw do ynu know ?
b i was Clerk of the I'apers Iit^ years.
I, Pleaseloukirtliere was uot an la-
left.
k When Burleigh led the gaol, there
arentory.
Ja/tn Botatll sworn,
laron Carter, Did yon see Bliss after
!ll. I nw Bliss bronghl in : I was in
c at that time, and Acton had him to
ward, and had a surgeon to bleed bim,
; for ointment to anoint him.
laronCorfrr. Where was he hurt?
:U. It was the small of both h» l^s.
laron Carter. Did l>e complain of bnth
V hart wilh the fall of)' the house ?
■it, lie did; it was twenty-four feet
Vtrd. Was be dresu^ of both bis legs ?
•.a. Yes.
Vard. Whether the deceased, before he
U tbe tick itard, hsd aay irons or
crews on bimf — Bottccll. No.
Itroo Carter. Did you sec liira carried
the lodge latolbe^lckwardr
ctt. Yea.
Una Carter. What way wag he car-
BmmII. Cmw the yard.
- xru. J 3 K
; being very inl
he said, Yerywell,
Mr. Bairn Carter. How long was he in tbs
lick ward t—Bomell, Two months.
Mr. Baron Carter. Where was be afler-
wards F.:-£oia>eU, In the Queen's ward.
Hr. Baron Cortrr. Did be go out of tbs
sick ward into tbe Qneen's ward F
Botaell. He went into another ward beforp,'
Mr. Baron Cor(er. Was it the Pnmp ward f
BNBwff. Yes; hewentinto the Famp ward.
Hr. Baron Carter. Did any one meddle
wilh bim when he went crocs tbe yard '
BotB>ell. Nobody.
Acton. Please lo ask, my lord, bow he was
in liealtb afler be iras abroad.
Botaell. He lay three weeks next door tn
tbegaolat tbeDolpbin; I
I asked bim bow he did ;
And he worked for me in the gaol, i
then a day, when he was able.
Mr. BaroD Carter, How was ha when he
was out of tbe gaol F
BomtU, Be said he was very well in heatlbj
but bis legs were not quite come to.
Hr. Baioa Carter, Did he complain of ooq
or both \egtt—Bomell. Of both.
Siunutl DaWttuh a worn.
Hr. Baron Carter. Did you se^ Blin after
bis fall from the house F — DaTienuh. Yes.
Mr. Baron Carter. What slate of health
was he in?
Daveniih. In a good atate of health, only
laraeofhisfoot; Ineier saw any thiagotlicr-
Mr. Baron Carter. Did you see bim after
bo was out of gaol F
Daveniih. 1 did, and draok with him at tbs
Marshalsea eate ; be was in tery good health.
Aclou. locate to ask, if be ever saw any
1 Carter. You hear the qaestion,
Datenith. No, directly or indirectly.
Mr. Baron Carter. Did Acton behave him-
self welt lo his prisoners ?
Davenish. He never behar eil himself inde^
cently to any of the prisoners.
Blr. Baron Carter, Was bis behaviour good
or bad?
I>ttvenuk. Very f(ood ; I never saw an ill
action of his in my bfe.
Benjamin Broain sworn.
Mr. BaroQ Carter. What do you say J
BroBin. As to what?
Mr. Baron Carter. As to Bliss ?
Broan, I saw Bliss when he fell from Iha
house, and he complained of both legs ; ona
was worse than the other.
Mr. Baron Carter. What was Acton'abehf.
viour towards tbe prisoners in general F
Brown. Very good.
John BoKdlertwom.
Mr. Baron C«r(ei
BlissF
was in the:
What do you know of
ward with Um
499] S GEORGE IL
■eT€n months, and be was Tery hearty and
well.
Mr. Baron Carter^ How Was he after the
fall from the house f
BowdUr. He bad hurt one leg by the fall.
Mr. Baron Carter. Wbat waa the prisoner's
general behaYiour ?
BoBfdler. I nerer had any thing bat rery
good u8afl;e while I was there, which waa three
years and three months.
Mr. Baron Carter. . Was the prisoner there
all that time ?—Bo»di^. Yes.
Hixaheth Ootling sworn.
Mr. Baron Carter, How was Bliss after his
fall, when he was brought into prison?
ikn, Omling. He had sprained one of his
ancles, and was carried into tne sick ward for
three months ; he lived at my boose, and said,
he was as hearty as ever in his life, only as to
the sprain of bis ande.
Mr, Baron Carter, What was the general
Jbeharioor of the prisoner?
Mrs. Ooiline, J never beard him have an til
diaracter, or that he struck any one in his life.
Robert Greshttm sworn.
Mr. Baron Carter. What state of 4ieakh
was Bliss 4n after he came out of prison ?
Gre$ham. In February 17 26, or 1727, he
came to lodge at my boose, with two more,
and lodged there near three weeks.
Bfr. Baron Carter^ Praytake notice of the
qnestion that vras asked. What state of health
was be in ?
Gretham. He looked pale, but eat his vic-
tuals well.
Mr. Baron Carter. Did he complain of any
in usage?
Greshanu I never beard him complain of any
ill usage.
Mr. Baron Carter. Did you see bim after
he bad been in the conntry ?
Greiham. Yes; he came to my bouse, I
was not at borne when be came, but went up
after ; and he said the weather was too sharp
Ibr him, and be caught cold, and could not
slay in the country.
Jane Lapworth sworn.
Mr. Baron Carter. What are you ?
Mrs. LapzDorth. Nurse of the hospital. I
was there on the 11th of March ; Bliss was in
there a few days before.
Mr. Baron Carter. What condition wu
lie in?
Mrs. Lapworth. He was ill of a fever, Dr.
Coatsworth had the care of him, and he took
jpiedicinesfor a fever and flux.
Mr. Baron Carter. When did be die ?
Mrs. Lapworth. I went to the hospital on
the nth, and he died on the 25th or 26th.
Mr. Baron Carter. Did he say what was the
oecasion of bis death ?
Mrs. Ldntoorth. I beard hfan say no more,
ttian that ne had been in the country, and
iMflUaiiagat wd an intamittwg ftrar.
qf William Achn^
[JiOC
Mr. Baron Career. What do you take to b(
the cause of bis death ?
^ Mrs. Lapworth. The fever was the cause ol
bis death.
Acton, I desire she may be asked, wbetba
after be was laid out, there were any bruises is
his head or hce.
Mr. Baron Carter. What aay you to Ibt
question, woman ?
Mrs. Lapworth. His head waa abaved, and 1
saw no wound, bruises, or scabs in any pail
whatsoever.
Atton. Please to adi if his wife vraa.there.
Mrs. Lapworth. No.
Acton, Did she sit op with him in bis ID-
ness?
Mrs. Lapworth. She sat up one nkjibt
Acton. Please to ask, if he voided^ blood si
not
Mr. Baron Carter. Answer that — ^What di
you hesitate at?
Mrs. Lapworth. Not during my time, fnm
the 11th to the 26th of March.
Mr. Harding, Did you see no marks aboot
him? — Mn. Lapworth, No.
^c^oR. My lord, I'll rest this part of ay d^*
fence here, but beg leave to call some wilwsMS
to my character.
Mr. Baron Carter, Call whom yon wilL
Sir John Darnell^ Seijeant at Law, and Jiid||C
of the Marsbalsea Court, sworn. '
fiRr John Darnell. My bird, I did not bear ai|
thing of this affair, till I came here to the s»i
sizes. I think, my lord, it is five years sfs
since I had the honour of having the patentnc
steward of the Palace- court ; and it ;is tbrei
years since Acton has been in the office that hi
now is in; and in all the time that 1 hafi
known bim, both as turnkey, and when he cbm
to be deputy, I always thought him a very bv-
mane man. I have often heard complaints si
th^ prisoners, and have -spent whole days li
mediate between their keeper and then ; ud
never found but be was very willing to ban
them made easy. Tbis^ only I must say, thai
he was careful of the custody of them . in sn
whole observation, I neither thought binii croB
nor severe.
Mr. Ward, Do yon believe he was gnS^ si
murdering prisoneis by duress?
Mr. Baron Carter. I can't ask bim that qua
tion.
Mr. Marsh, Was there no applicatkm by pe
tition^to you, as judge of the Court, from thi
deceased?
Sir John Darnell, No ; I never beard thi
he was a prisoner.
Mr. Marsh. Was there no petition to yoa i
relation to six persons being put in irona f
Sir John Darnell. No.
Edmond HaUey^ esq. awwfe.
Mr. Baron Carter. SSr, the priiOiMr cril
yon to his character.
Halaey. I have known tiie priaOiier cM
uoe ho WM fU tha Blanhd^
Jbr lie Murder of Thomas
ily. anil neter lieard an ill
' ihat be wu a rery boncit
min, and pajil ter; well
Mr- Ward. Do«s he keep a sliop ?
Baitfy. He bu^sbreail anil beer.
^ril: I liiT« known the prisoner btller
Ikalmlve niualhK, >nil I lhnui{bl liiin impro-
ffbt the |i08l he wai in IroiB bui tog great
MaloJe, esq. one or hifl tnftjeslj's Justices or
Pnt% tor llie uiJ coumy, Bworu.
Mr. Baraa Carter. You m'lHl speak lo the
flMnl dtaracter nf the prisoner.
I^it. I life ill the neigh bnu I hood, and most
CMHDonly am applied to if ajiy abuies hare
k(D MmmiHed in Ihe prison -, and I nerer
Wi hcinl ao}' complaint of llie ill uaag« of
tU. OarOD Carlcr. What ia hii general cha-
Xa^. Bia general ctiaracter i* good,
Mr. Bayiey sworn.
BtifMy. The nrigoner was four yeart a ser-
nH <nth iiiy fallier, and his bchavioLir was
«n mO; he was a Gcood-naiureil man.
at. Ward. In what capacity did he serve
jmUiiatf—IIaytty. As a butcher.
Jahit JIfarrit alTBrD ■
t 1 bate diicDarged three hnndreil poor
■a, and 1 never found heller usage in
1 afpalthan in ihi<.
' ' I. I doire be may (rive an account
. . _.I1 «r nlacn ike Strong Room is.
Ifaiii. I have been of the bnitding trade,
*rtk>ra taken particular notice of the Strong
^■i mad WMild choose it rather than nay
I aa (lie common side. I'liis rises leo
* aurl'ace, and is hoarded, and
liaiU^ tviib a tarpaulin; andlheoibera
cp.
ene to aak if any wet could come
doD't believe any wet could get
;. It bad Dot been built long ttbcn
r. Ttrrant, in the Borough, sworn.
1 4c«rc, my lord, be may be aakcd
"■ gitoooi.
■aa ciirioui to see the Strong
k ia a boarded placu of nine I'eet
u Carter, PiayouHaitf
Blus. A. D. 1729.
Terrant. Yei,
Mr. Baron Carler. Was it dry P
Terrant. Ilwas.
Mr. Baron Carttr. Was there any ilenchf
I Tcrranl. It i* very close.
Mr. Mirth. When did you gntoseeit?
Terrant. About two maotJis ago.
Mr. iUtiriA. IVasitovertbecommon-ieiverr
Trrraiit. No,
Mr, Ward. Was it dry nealher when yoo
saw it? — Tcrrajil. It was.
Mr. 2ii^'(ir,of the Borough.
Acton. 1 desire be may acquaint the Conrt
what is my character.
ToyloT. In relation to his characler lie ■
a very honest man, aod a man of bumanily to
all people.
Acton. 1 desire be may be asked aa la the
Strong Room.
Toflor. Tlie Strong Room is dry ; there is
a drain runs some diatanue from it, but not
Mr. Whitaker, of the Bormigh, sworn.
Whilaker. I have been with Acloo in and
out nf gaol, and never uw liirodoany Ihinrill.
Aclua. Please to ask liim, my lord, about
the Strong Itoom,
Mr. Baron Carter. Give Bii accountof what
you know of that. .
IV/iitaker. The Strong Room is dry, tbcr«
IS no drain runs under il, but there ia a dratn
nboul five yards from it.
BIr. Lamb sworn.
Zamb, I have bad the happiness of know-
ing him Ibese tliree or four years. He lisa
had a good character, and was a man of hu-
manity.
Mr. 5yf^a//, Apothecary, sworn.
Mr. paron Carter. What was the prisoner'a
character f
Sj/dall. Having had recourse to Ihe gaol,
the prisooera tnid me he bad a very good cha'
Mr. Sroivii sworn.
Mr. Baron Carter. What character had
the prisoner F
hrown. I believe 01 good U any uaD'a
Mr. Httrruon sworn.
Harriioa. 1 hare known his character IbcM
three or four years, and he is a very modest
man, and of a good behaviour.
Acton. My lord, I humbly apprehend I
have called a sufiicieni number of witne«sea to
my character, and will rest my delence heca.
1 appraheiid it can't be conceived, that any
man can be guilly of stKh inbuoianiiy aa is
hrre laid to my charge, aod to live a year,
Mr, Baron Carter. You must not iay thai ;
Tor Iheii Ihetc could have been no room for tlia
prosecution.
Atlm. By kll circunuUDCM, ay Igrd, Ihit
603] 3 GEORGE U.
man mast certainhrdie a Dataral death ; and I
hambly apprehend, that they iniut be mistaken
in point or time, for that no irons were used
ilie second time of his attempting to escape.
Mr. Manh, 1 would not be wanting to my
clients, and yet would presenre all rale and
order, and must beg leare to obserY^*—
Serj. Bayne$. I naTe been concerned in se-
Teral criminal prosecutions, and ne? er knew it
admitted.
Mr. Strange. The prisoner is not allowed
coansel to speak for him in his defence ; there-
fore the king's counsel have no right of reply.
It was not allowed in Hoffgins's Trial.
Mr. Baron Carter. In Huffgins's Trial Mr.
Jostice Page and myself woola not allow it
Mr. Bvton Carter. Gentlemen of the jury,
tlia prisoner stands indicted for the murder of
Thomas filiss.
To prove this, a great number of witnesses
have been called on the part of the king, not
less than sixteen, to make good the charge.
The first thing necessary to be proved is,
that the prisoner at the bar had the care and
custody of the prisoners; for which purpose
John Wilson was called, who proved that Dar-
by was keeper, and the prisoner Acton turnkey
amd servant, and acted under Darby. That
^t stands plain, that the prisoner at the bar
liad the tare and custody of tlie prisoners ; and
if he has behaved in such a manner to prisoners
as death ensues, he must answer for it. It is
said, that every prisoner must be treated with
humanity, and the law is very tender, and di-
rects that no prisoner shall die in gaol, but the
coroner's inquest must sit upon his body ; and
the reason of that is, that he should not be
killed by the duress of the gaol.
The question stands singly, whether upon
what you have heard, there has been such a
behaviour of the prisoner to Bliss, tliat it has
been the occasion of his death. If that is so,
then you will find the prisoner guilty.
Wilson spoke much of the escape ; he talked
about it, but did not know when he escaped ;
he only goes to that. He sajs, that he never
did see Acton beat him ; but that he was well to
some, and beat others, which came from the
prisoner's own question ; therefore I was put
to ask it, and I have told you the answer.
The next vritness, the wife of the unfortu-
nate man, says, that her husband was there for
a small sum of money, but that is not material ;
lier husband was almost laknisbed and starved,
and therefore attempted a second time to escaiie.
The means he used to escape is not material)
that is not what you are to rely upon. She
says, there was some assistance given him ; a
rojK) was provided, and he unfortunately mis*
carried in the attempt; and ho was brought
back into the prison again, and she saw him
beaten by Nichols, Page, and Rogers; and
^bat is remarkable, she saw the prisoner beat
bim with a bnU's pizsle,.and the end of a rope;
that he cried oat, it'he had any mercy, he would
faavemMejapoBhiBi. He then fut hin into
Trial of WiUkmActtm^
[5H
the S^g Itooro. As to the mftare ef the
place, that is a consideratkMi I shall take np by
and bye. She says, she taw htm with an ia»
stntment of iron on bis head ; that the hkMi
came out of his month, and out of hia thnali ;
that he had thumb-screwa on his thtunhsy mk
sheers on his legs ; that she saw bim to^
down, and saw the prisoner on top of hia !§•
veral times. After he bad treated him in tUi
manner, be began to relent, thmking he iniighl
die, and it was time for him to tiuce ceie.ef
him, and sent him a piece of meat. She saj^
his legs were swollen, his body ttib bwoBtu |
she got bim a pair of stocl'Jngs, but lue kfi
were so swollen, she could not get then s^
After this, when he was removed to another
ward, she said, heerew something bettor. Tfait
when he was discharged, he used hk cadia-
vours to get work ; (gentlesaen, yoa did eh^
serve the qoestun came from the prisoner) hot
though he was with the man that be traslBi'
with, he got another, he could not woilci Ui
legs were swollen, and there were marks m
them. All the time, to the tim^he was pel
into tlie Strong Room, be constantly esm-
piained of obe breast and his side ; and sAw*
wards, when he became so bad that be eseld
not work, he was put into the hospital. Oss
thing is ^ery observable, that all his disoonrw
was, when any one asked him eoncemiflg his
usage, that he said, he did believe that he
should never recover it, but wouMlay hudsalh
to Acton ; this evidence was given oy the wi^
dow ; she was asked by a question from the
prisoner whether she told her sister of thb?
She said, No : did you tell your mother. No;
her mother and she were not upon good terM^
and she never was with her but a very shsil
time. Then she was asked, if Newknd dil
not &«ud for her ; she said, Yes ; it was tboeehl
that he was a very considerable man ; and mi
she was asked, wiiat did he say to yuu, he ssiii
he would have her husband done right tow IlMft
there was a question asked of Hester Long, Si
to money, slie (Bliss) baid she was to hsvcr
and Bliss says, that she never did say any i
thing.
Susannah Dodd ; she gives yon an
that she has seen Bliss iu irons in the Slrsng
lloom ; that he was treated crueUy ; that he
had then screws upon his thumba. There itis
a very particular circumstance, that he desired
her to chew bis meat for him, for thatiie ooald
not do it himself, by reason of having the scoQ-
cap on ; that she carried him a three-farthia||f
mug of aie, and the screws were unoe ha
thumbs, therefore she was forced to ^ivehun
the drink, as he could not put the mog to his
mouth to drink, because of his thumbs hdmg
confined ; that she saw fettens, very laigeonei»
on his legs, and thei'c was a pair of sheers oanb
his legs; that he continued there two dij|ev
and Sie saw him alter, . and saw his timi
bleed ; and tlie Strong Room was a
room, and leaded, and tisat she tliiaksit i
imhealthful room.
Bmlcr|.ihegifetdndccsBatef hkittiidjr
Jar ike MurJbr tfTkoMt SH
A« D* 17991
ISM
iaHBTOv, that fbetsw Ike pri-
him (mm) with a boiri-pttsle, and
SiBiwls was beatbif Inn, she nw
llw deeeaied down, aod nw Acton
■ kkn thfee tunat^ and ihtwed the
if iRaatthat he eoaiplaiDed ef, and
ndh waa owing to neh vmge. It
fllhr and itomob thai be •tamped
I ne wasvenrill when be did it;
Iqpi weredwdUed ; but that he «nd,
da Tenr wall hot ftrthepainln lif
I aaja^ UMl the StoMig Room was not
I any hnnnui cnatore ; that be went
lagwt, and eaine abont Cbritimaa.
km ariud aa tohia ehainelert ihe
I good and bad ; and eayt, that the
ft waaacanphdiitaMideithat Aoton
tthorofMadeith.
M^Bneon tHten no notice or, flae bw.^
Ifia ; she agrees as to the fall from
\ and she says, that NitfbollM, Pftge,
BheldBiiMtiU Aeion beat him i^
mle; that hewas.earriedtothetiek
e was asked how long they were
I in thfe manner; the said, half a
an honr. Repatatioo is not so ma*
I nMdaose of; yon are to codrider if
m done*
8t witnem was one James Abbot;
asr(l willtske it in his own words)
■I as dmbbed, that he never saw any
bhad in hiali^ with aropeand boll's-
fasays, be did not see Acton there,
iiavm him with it; and be agrees
voeTbebavkHir of Acton. Jf the act
litted, he might be there, and yet
seen by him. He was asked, as to
's) character; and he saii}, he saw
nany.
r Brandon says^ that his legs were
lien, and the skin was broke ; that he
arks of the irons. As to the fidi
KHise, and the straining of one of his
HOWS aothb|f of it He swears di-
be skins bemg broke of both legs ;
re, that he oftien talked with fitirn,
id, that he did believe the iniories he
red from the prisoner wonra be the
im, and he gave an atcooont, that the
nd his legs were circular: that it
win^ to the irons, and not to arise
My IS the observation the conosel
t yon will be governed by seitoe and
Lenwood ; shesays, that she M# him
ly aod that his legs were so bad, that
rare forced to be pulled off ; that the
ito his legs; andinto his ancle, they
siy deep ; that the skin was broke,
were sore; this she saw in the Ml
mi he was m so terrible a condi^
paverty, that be bad nothing-to help
ststhes, bnt a piece of UanM: she
im, and carried him som^ of her hns-
Ihsa. Risremarkslble, that she car-
■ psfr of stockings, and they wonM
hiaMldnet|^thm«ii« MM'digrii^
they warn bar bndNnMFs, bad thillier hnsbandt
was not a very btffe man.
Peter Poraraee ; he says^ that hb legs wcrd
resy moeb swelled^ and be taek it to be the
marks of the irans ; be saw his thimibs very
blacky which betook to ba bnit by the thnmh*
Coomius; be aaya» that his legs were ?eiy
moob awalled, and apprehends it to be occa*
sione^by the irons } compares itto the fetlodt
ofa banecaltvith a dog^ that the Sma^
Beam Wasa place of tenlir» to beep them (Vote
being dMArderly; and that be b«ud Acton arr
to Bliss, be tboAght ha had gifea bhn Cndugtti
bnt ha waaM give him more;
Edward llnmy sayk tbil ba Mfer saw wnf
tbbig en mocb beaten In hie whole Mb; that
hlslaga#era Mack, and Uneyibd green. Tbtf-
conasel duebad yao^ gatoilwiiBB^ to take notiee
what tMs witnem sa&l, that h« complauied hf
hiasMa^ whkdi had baen bnrt ^ the bmiMi he
had reeeived from Acton* - ■
HabMisays, that hcTwenl toHr. Daiby npda
aaartienlareocasion; bnt I can't mention to yeai
wnst he smd, beosnie it is mA evidence; hli
oonfinia Ibft etfaers in amna meainre that ha
had rather bai^a larger hronsi that his legt
were ao avfiAcd^, diat bi^ conld scarce see thd
pair cf fetlen on tfad sidOi because the swelling
Tbd Ifing^coonselcdled three witnesses, aa
to tbe deceased woildng at floothgato. Cowldy
says, be wanted woi^ and he was willing to
let Um have it The man went down, and
csma no again/ and the second day he treated
hhn with motton hrotiiy' 5ec. but this is not mif •
terial. Bnt he says, he complained of bis side,
and idwaya said be had received it from the
prisoner at the bar ; ha sahl» there were hoM
in his legs, and that Aeton wai the authdt of
bv dealn.
Oowlay, the yoangerj skya th6 same ; that
they treated him Kke an old acquaintance, and
provided him with broth ; that the man was io
sick he could not work ; that bis legs were
swollen black and blue, and be complatned of
his breast ; both shewed with their hands how,
by pointing to their own breast, and said, he
points to bis; and that Bliss said, if he died^
he wooM lay his death to that rogoe Acton.
Pftrker says, that he was to be his comrade,
to be empkyed in eome task work ; thatthoo^bf
thrf lam him by the fire, his ^sicknem m-
creased, and they broo^t him to town ita a
carl^ and ril his confphdnt was, throogb Ai
injury he had received from Acton ; that bii
lege were iwdlen.
Therefore, upon the whoje^ wbat craltt yov
wiU give to the witnesses fbr tba' Uggi fi Ml
your own breasts.
Now, ai you have gr^jpm ftftnlbtt «a
what has been said •gunf^m, w^ jf^y^
notice of what has been leU wrfib awn pmt ,
if it is contradictor^^ l2«»J«i^«sy |^^,^
that ; yon ^^J^?g°.*°gy* n*^ "
SOT] S GEORGE IL
Sainael Bollock ; he says, that he saw Bliss
broug^ht in aAer his fall ; that he had hurt his
mncle ; but he savr no barbarity used ; aud saw
him carried into the sick- ward. TheDezt is,
Robert Holmes ; he says, That there were
no irons, only on one le^; and Acton always
used him well, and if it had not been K>r
ilctoii, he would have perished. This cha*
racter differs from what has been laid before
you. fie tpive an account that he can(pht a
sad cold, which was the occasion of his death ;
he says, that he never saw him in the Strong
lioom : and that as to his health, it was very
good the whole time. This is their opinion of
Bliss ; these people would make you believe
that he was perfectly well, and hail received no
injuries from Acton. He savs, further, that he
met the woman on Saffron* n ill, he asked how
her husband did ? When he asked her, she said,
she thanked God he was dead, ^the woman was
glad 10 get shut of him) and said he died of an
ague and fever.
Chapman saw him afler the fall. The first
place he begins with, is the sick ward, and that
Acton sent doctor Draper, and that nothing was
done to him in the ^ard. The yard is the
place that the principal evidences speak to ;
that the prisoner was humane to him, that he
had so great compassion for him, that he al-
lowed bim two-pence halfpenny or three-pence
m day, till he was better ; therefore, he would
have you to believe he was a very humane
man, and that he could not use the man as
others say the prisoner did. He says, that he
was removed to the pump-ward, and was con-
stable there, and came to the tap ; that he saw
him at Gresham's very well, and saw him
afler he came from Soutbffate very well. It is
Tery remarkable he should never complain of
Acton. He savs, that he looked upon it that
the occasion of his death was, from the cold
he caught at Southgate; that^the Strong Room
was not so terrible a place ; tliat it was a dry
room, though a Strong Room ; that the pri-
soners were so far from thinking this room a
terror, that they chose it ; that he ooropUuned
only of one leg, which differs from the other
witnesses. All were conversant with it.
Thomas Fletcher you will find was a sur-
geon ; he says, one leg was very much swollen,
from the fall he got ; he said it was a tumour,
in his way of cUaiect ; he went home, and
brought proper things, got some ointment and
a sear-Cloth. He says, that Bliss told him be
should never have been discharged but for
Acton.
Thomas Whitfield ; he tells you Mrs. Bliss
told him, that .her husband had ffot cold in
the country, and had a fever and ague. He
was asked in relation to the Strong Room,
which he said was the best place on the com-
mon side ; that the prisoner had a good cha-
racter, and gave victuals to^ many <n the pri-
soners that wanted.
Robert Walter says, he was not privy to any
ill usage Bliss received from the prisoner;
thai iw iralkad well, and tslM hwtUyi Mid
Trial of WiJUam Adofit
[508
complained of nothing, only one leg, which he
apprehended he had hurt by the fiUl. He
spoke in praise of the prisoner for his homa-
nity.
The next is John Chope ; he says. Bliss was
well in the February before be died ; he cosh
plained of nothing of the prisoner ; that ater
be was discharged, he says, he went to Soolh-
gate ; that became from thenoe, and slier thst
conaplained of a great cold.
William Bolland says, that he never saw the
prisoner misuse Bliss; that he consptaiacd
only of his leg ; that he eat and drank well ;
that he saw him afler he was disohaiged,
and be said, that the prisoner had besn civil
and kind to him.
Westbury says, tliat he complained of ooa
leg only ; that he went into the country and
catched cold, and that was the occssion of his
illness.
Fandy ; he says, that he lay with him in tht
Queen's ward several months. I don't apprs-
hend he was in the Queen's ward, but he did
prove him to be there. I will tell you how
that matter was : This man speaks to a eso^
sidcrable length of time after his cscspiag;
the time is not settled, both are at a loss Sft
the one side and the other ; it should have been
reduced to a certainty, because the indidBeot
is confined to the second escape. He says one
leg was bruised only, the other swelled ; tlMt
he liked to drink, and did not go to Iwd, and
sat up, and that was the reason of it ; that he
saw Bliss in the hospital, and he said to hia
that he had catched cold ; that he was at woik
in the country, and that he was brought into
that condition hy an ague and fever.
Hester Long has given a long evidence;
I hope yovL have taken it, because it is a very
long evidence, and affects the character of
Bliss. She says, that slie saw him several
times, and that be was as well as ever he was
in his life ; that he was to go to his master for
7«. 6d. the profits of his lal^ur ; therefore he
was fit to work, and had obtained that liberty
from Acton. It seemed she had some disoourso
with Mrs. Bliss, and said she was ber sister-in-
law, and she desired leave to lodge with her. After
the death of her husband, she never heard any
complaint made about Bliss: that four months
ago, a gentleman sent to her f Bliss) to swear
against Acton ; that Long was there, and Anntt
Bliss's brother, and he cautioned her not t»
concern herself; that a man's life ought to be
taken care of with the utmost caution ; thai
she was to leave her master, one Jennings, to
go to another place ; and Jennings said, that
she should not make it up for forty or fito*
pounds. Her brother said, that if she wou»
make it up with Acton, she might have forty
or fifty shdiings. Bliss denies that she had
any sum, that she was never offered fortv or
fifty pounds to swear, and her master said shw
should not take any, and advised her, that if
they would give a hundred pounds not to take
it, to hinder the prosecntwn. She (Bliss) says^
that JeBBtfgt lot lier baTO two or thns gu^
A,]>.mt.
t51t
V^^w the sick nard,
^^7 of bU ancle.
^71 be luclgeil at his
^^^U due barged, and
^T! had got from the
Ine; tihe U a fer;
she MjB, ibat he had
tave a descn|ition of
it. Me, poor man,
nedlcliiea a|iplied by
ja, she ap[)rcbeaded
iirouebt bim into a
rkable, she laid him
;atiB, or any tbing
credit Ibis will re-
but this eridGDce
bare giien you a
ry glad you haTe
I tbunMu of tba primMT, bw wit-
, Im ia K MIT hanuM nu ; udif
bAn than dowo, tney m in nmnber mf-
-Ut IM.
My brother Dunoll Mya, be bu ben
siensird er lb* FebM wnit abont Atb yeari^
end nera be>r4 nj wmpltiot agunat tha
prisoDw; tbatttbtbne yean aiaee Acton ha*
t>een iD tbc office be noir ia id, and in all that
limt' liBtbaaafat hima Tory hnnaDs naD, and
III I' I iboiwht him cniel orKreie^
Mr, BiMey laya, ha waa a rery bnimna
. Syall, Ur. Udt, Ur, Bayaey, give bin
1 cry odod character.
Mr. lIoRiaOffl iaye, Ibat tba other rooma
'ere under gromMl, and tb« Sttoog: Room waa
- iiBbeaaboreptwaiadry place, and corer-
> IT tba top with lead.
:>Ii-T«ir>BtHiVB,thathe tbuika tfaeBtrane,
ItooLiV a rery dry place, and girea Acton
n |.">i>tl cbaracter.
'Hkh, gentlenMn, Hr, Taylor nyi, he waaa
I'l^iii'iffaDmaDity ; and that there waa no drain
iji^rilieStroagBoois.
.tlr.Bowdl^ girea him asood character;
and tbor or fi*o Other wilueiiTiaTe been called
the Srai^ RooB I don'tflnd moefa nidenes
to affgel Ibo priiooer u to that. Hmto ii
pnaoncr, la wl
Upon tba wbolA, if yon ar«
Isfied that tba priaoaai ' -••"-••-
manner aa tbc Uog^ wi
oTbiadi
led bi
ia death, and tlut lie had
ill, and beat him, yon will And him.
((I'l.ivi uuiif Im wainotaotrcated.anditwaa
not i1i«occaaion of hii death, you will find bim
not gidlty.
TJiere are great oantradictiona in the eti-
dcDce, I aearce ever Iteard ao great It ia a
mmer of great coMitqnenoe, ana dwBTTai your
nuLtnre cwuideration. .
Tben one waa awom ta bep tha Jury, atid-
they willidraw, and Baroa CaKar went ta
dinner ; and when be reUraad, they gave tlieir
CI. ef Arraiffa. Gnllemen, are yea all
■grreediDyourverdictr— Ommi, Yea,
Ci.cfAtT. Wboahalliayfor jon!
Omruf. Foreosan.
CI. ofJrr. William Acton, bold if ihr'
baud. (Which be did.) I<ook npenlbairr-
mner ; how Mv'yon; leheOnillT oftbeHoajr
and niiuder wb««of he atandl iu^ibW. « Met
GuitlyF
»11}
S GEOBGE II.
TrUiifWmamAclim,
[SU
483. The Trial of William Acton, for the Murder of John Brom-
field, at Kingston-upon-Thames, in Surrey, before the Hon.
Mr. Baron Carter, August 2: 3 Gi:oitGE II. a. d. 1739.*
Saturday, Auguit3, 1739.
CI. i^Arr. You good nieo, that ve im-
ptandled to enquire, &c. uiawer U> your DUae%
and uxeyonr boes.
CI, ofArr. William AdOD, bold up TOur
hanJ. (Which be did.) Yon stand mdicted
bv the Dsmeof Wiitiam ActOD,&C.
'CLofArr. HowMTeittfauo, William Adon,
■rttbou Guiltj grtbeieloojand murder where-
of tbouataadest indicted, or Not Guilty F
Acloa. Not Goiity.
CI. i^Arr. Culprit, how will thou be tried F
Acton. By God and my country.
C/. e^ Att, God pend you a good delifer-
anob
rally arraigfned upon two
one tor the murder of Ro-
bert NewtoD, and the oiber for ihe murder of
Jamei Thomp*on, to which he lererally plead-
ed Not Guilty, and put himself upon God and
hii coaotry in maonei aforeaaiJ.
Then procIamatipD was made for iDforma-
tion.
CI. t^Arr. Thou the prisoner at the bar,
tiiosc men that thou slialt h^ar called are to
pa*i between our ■orereiiia lord tlic kinr aaJ
lbee,upanthetnaloftliylireBDildealb; thcre-
fbre if tliou wilt challenf^e lliem, or any o[
them, your time to speak ia as they cume to the
book to be sworn, beforo they are cwom.
Then the tame pauoel was {Toinc lo be called
orer, which had tried him tbedaybelore.
Upon wbioh Hr. Paxton, the solicitor fbrthe
CTOWD, three WTeral times inaitted uiion a new
fUuel,
Ur, Stramge. The other pannel cannot
write; Ihet^are men of abiliiyajidexperieoce.
Then the pannel was called orer.
Mr. nfard. WedtallonKeRubertParkburst,
fiduit was lut read.)
Jrar.
Thonai CMe, George Wadbrook,
Milei Puote, Thomas Banillurd,
Vuicent Hollit, WiUiom Bmwue,
Cbariea Bnckland, John Walter,
William Ooawell, Robert Patten,
John SiffitH, James Wellbeloved.
* Sm the ptceding and bUowii^ CaMt,
CI. of Arr. William Acton, bold up thy
band. (Which he did.)
Mr. Strange. My lord, you will pleaae to ad-
mit him to the other bar.
Hr. BaroD Carter. It shall be allowed.
CL of Arr. You of the jury, look upon (he
prisoner, and hearken lo hia chargv. He ataads
indicted by the name of William Aetun, jcc.
Cprout in the indictment mutatii mutaniSt.)
Acton. 1 desire it may be read in Latin.
Mr. Baion Carter. You had tbe i
yesterday read in Latin, you found it ni
(age to yon ; if yea purooae any adrantage by
it, you may have it read.t
Acton. Idesiremy counselmay hearitread.
Mr. Baron Carter. Let it be read. (Which
waa accordingly done,}
Ur. Harding, My lord, and you gentleBCa
of the Jury, 1 am counsel for the kinr. The
prisoner al tbe bar stands inilicled for Rm mur-
der of John Bromfield. The indictment sell
forth. Thai
Wb will call our witnesses, aud dont doaU;
if we proTc him guilty, hut you will fiod
Mr, Ward. Oentlemen'ofthe jury, you sM
what the nature of the indictment is ; it it fir
the inhuman and barbaroua treatment of Joba
BromReld, of which he died. If wasbewyoa,
that that was the real and true causo of his
death, it cannot be doubted but that be put him
to death. Gaolers oughLto treat their prisM>BS
with humanity ; they are to conAue them in a
place of a secure custody, but not to treat ihea
mhuraanly.
On the first of March, 1725, captain Brom-
field becams a prisoner in tbe Harshalsea pri-
son, gentlemen ; he fell under the displeaaora
-if Ai^on, tbe prisoner at the bar, and in order
o satisfy his resentment, he bmt him inhu-
manly and unmercifully, that Ihc marka and
strokes of tbe blows weri.* Tislble after his death.
Nut satisfied with this, lie put him in double
, which the man cuuld scarce well bear;
and put him into a hole which is damp, dirty,
and strait ; ao that he could not stand tiprighl,
or lie at length : he was kept there for aereral
days. The prisoner then began to rcleat, and
took him into another place, but di^ nut taka
the iruna off at that time ; but tbe nian baring
contracted an ill sUie of health, uben the pn-
: thought it would be the occasion of bii
death, be then took off the irons ; hul that waa
late, for he soon died. This, gentJmen,
will shew you the reason why, cunsequenllri
the coroner's iuquesl should have aat upou IM
iNHty ofcaplain Broni6eld; but no coroner'* io-
fuest did ait ; and the reasoo is plain that il did
t Sac Ihe pnceding CiM^
US]
fir the Murder of John Srom/leU.
A. D. 1729.
Ml, for if it bad, they would haTo seen that he
hid come to his death bj a Tioleot uccasion.
If we prore this to be the case, gentiemen, von
«iU do jostioe to your country, and find him
t.
e will call our witnenes to prove the facts.
William Wheeler sworn.
Mr. Ward. Do you know the prisoner at the
hr»-W'AcWer. Yes.
ifr. Ward, Do you know whether he was
lanlGsy in 1785?
Wkultr, He was turnkey to Mr. Darby.
Mr. Ward. What was tlie business of torn-
Wkfuier, To take care of the prison and pri-
Mr. Ward, Did you know captain Brom-
Add to be a prisoner then ?
WJkeier, Yes ; be way a prisoner in the be-
fiaaingof the year 1785.
Mr. Ward. Gire an account of what usage
jaa saw captain Brom field have.
If heeler, 1 Imlged in the same room with
Aim. We were locked up ; and coming down
MirB there was a batch, which was locked, and
•as IMrins kept tlie key of it ; and he made
•anb to let captain Brom field come down.
Mr. Ward, What was Perkins ?
Whuler, Serrant to the gaoler.
Mn Ward. Go on.
Wheeler, There were some words passed ;
kti at bat Perkins did let the captain down,
ad be went into the chandler's shop, and Per-
UaiaDd the captain fell into greater disputes ;
mi the captain took a knife, and jabbed it into
FbtUbs's breast.
Mr. Ward, Did you see Acton there ?
Mr. Baron Carter. What did he do then ?
Wheeler, He dropped down the penknife,
sad it was found in the chandler's shop. The
csptain was carried into the ponnd.
w. Baron Carter, Where is the pound ?
Wheeler. The pound and the chandler's shop
jsin.
Mr. Baron Carter. Where was he carried
hem thence ?
Wheeler. He was carried from the pound to
the kHlge ; further 1 could not see. fie took
bin away refractory.
Mr. Ward. Did you see him with irons on ?
Whuler. I saw him with irons on in the
renioff.
Hr.%
Hr. J'M/er. ^Vhat did Acton order f
Wheeler. After the court broke up, Acton
ne down and spoke to the captain ; and ask-
•d bias, what was the reason tnat he stabbed
Ibe man in • passion.
Mr. Ward. Did you see the fetters on ?
Wheeler. I did.
Mr. Weard. How long was he confined in the
We'
IFAer^fr. He continueil in the hole from the
Im ha was taken out of the lodge, till the next
^jaiaeoVlock.
^ Mr. Ward. Did you see Acton with him dur*
■I an or any part of this time .'
VOL. XVII.
r5i4
Wheeler. When Acton had ironed him, he
turned him over from the master's to the com-
mon side.
Mr. Ward, How long had lie the irons on ?
Wheeler, He had the irons on about five
days ; Acton scot him from the bole to tha
common side, to George's wanl.
Mr. Ward. When did he die?
Wheeler, He died the latter end of June.
Mr. iiaron Carter, When did he die?
Wheeler, Aliout four years ago, the latter
part of June 1785.
Mr. Baron Carter. Tell me when the faal
was?
Wheeler. I can'ttell the month.
Mr. Ward, Did you see him after he was
dead?
Wheeler, ^XeM.
Mr. Ward, What condition waa his body in P
J^lieeler, It was all black.
Mr. Ward. What was the occasion of its
being black.
Wheeler, It was said to be the jaiiudiee«
Mr. Ward. When did it turn black?
Wheeler, It turned black after his decease.
Vir,Ward. Was it one continued black| or
was it in streaks?
Wheeler, It was one intire black.
Mr. Wurd, Did the coroner's inquest sit
upon him ?
Mr. Baron Carter. That is no charge upon
the prisoner. It was not, in Fiens's case; if
the coroner's inquest had sat on all others, and
had not sat u|K>n this man, then this bad been
eviflence; but as it is generally omitted, it is
no evidence.
Hugh Martin sworn.
Mr. Ward. Did you know capt. Brorofield f
Alar tin. Yes ; he wus prisoner about tlie
begioning of the year 1725.
Mr. Ward. Giv e an account of what usage he
receiFed from Acton.
Martin. He was bedfellow with me in the
nursery ward, and on a court day lie was
down in the chandler's shop; and one of
Acton's servants would have had him go up
into his ward, but he refused to go ; and, upoa
that, the servant would force him up. .
Mr. Ward. What is the ser?aut's name?
Martin. John Perkins.
Mr. Ward. Goon.
Martin. As thoy had a scuffle together^
capt. Bronifield privately stabbed him, and
dropt down the knife. There was an outcr^', and
a doctor was sent for ; and in the time that ha
was called, Acton's servant carried the captain
to the common side.
Mr. Ward. Was Acton there at that time ?
Martin. I did not see Actun.
Mr. Ward. Who took him away?
Martin. Acton's servants.
Mr. Ward. Did Actoii i^'we any orders?
Martin. I don't know.
Mr. Ward, Did you see Acton in the yardf
Martin. I saw Acton in tlie yard^ or between
that and the Jo*Ige.
2L
51S] S GEORGE U.
Mr. Ward. Which way wu (^ptftin Brom-
fteld carried ?
Martin, He was taken oat of the cbandler't
ahop, and carried throu^^h the pound.
Mr, Ward, Was Acton io thechandlet's shop,
or ooiradf — Martin. No.
Mr. Ward, Did you see Acton before cap-
tain Bromfield was carried into the yard ?
Mr. Baron Carter, You say you saw Acton
in the yard, and that captain Bromfield was
pot on the comnoon side? — Martin: Yes;
Mr. Ward, After- he was brought into the
yard, did you see any thing dono to him ?
Martin, I did not see any thing done to him,
because I could not go out, I was confined.
Mr. Ward. Did jrou see any body beat him ?
Martin. No, but I saw irons on him.
Mr. Ward. What irons?
Martin. They were double irons; I taw
him come out of the hole the next morning
with irons on, between eight and nine o'clock.
Mr. Ward. Who put him in the hole?
Martin. I was not tliere to see it.
Mr. Ward. What sort of a place is the hole ?
Martin, It is a little place under the stairs ;
Kttle bigger than a large coffin in width and
length.
ilr. Ward. Did he lie or stand ?
Martin. He stood, but could hardly stand
upright ; he bad nothing but the earth to lie on,
Mr. Ward. Was the earth wet ?
Martin. It was dampish.
Mr. Ward. How do you know?
Martin. I saw it at that time.
Mr. Harding. Was there any door to it?
Martin, There was.
Mr. Harding. When it was shut, was there
any place to let in the light ?
Martin. There vas the key-hole, and a
crevice of the door.
Mr. Ward. When did become out?
Martin. Between eight and nbe o'clock the
next uiorDing.
BIr. Ward. Where did he go afterwards?
Martin. Afterwards he lodged in George's
ward, opposite against the hole, upon the left-
hand ; I think it is called George's ward.
Mr. Ward, Had he irons on in George's
ward? — Martin, Yes.
Mr. Ward. How long?
Martin, I don't know.
Mr. Ward. Did you see him after be was
dead?
Martin, I did ; 1 helped him into his coffin.
His body was a sad spectacle ; but I can't say
whether by the distemper or not.
Mr. Ward, What state of health was he in
before he was confined in this bole ?
Martin. He was in good health on the day
the scuffle happened.
Mr. Ward, What sized man was he ?
Martin. A middle-sized man.
Mr. Ward. Was he in bodily health ?
Martin. I did not discern bis iMNly ; he was
lieaHhy, snd eat his victuals when be had it.
Mr. Ward, Did you hear him complain of
any iUne8a?-*A£srlifi. I oerer did.
TridofWmamAdon^
Mr. Harding. How did he tppear ?
Martin. As a man used Io aptws
irons on. He waa altered nriseiilily
about a week before his death.,
Mr. Harding. How k>ng was it from!]
of his coming out of the hole, to the lini
death.
Martin, I belie? e it may be three w
a month, to the best of my knowledge.
Mr. Harding. How soon did tou s
after he was taken out of the hole r
Martin, 1 saw him the saoae morn
was put in George's ward.
Mr. Harding. How was bethea f
Martin, He was in good health, hi
cripling by, baring the irona on.
Mr. Harding, What do yon apprebe
the occasion of his death ?
Martin. 1 believe the ill usage, and I
the hole, were the occasion of his dea
for want of necessaries.
Acton. When he was in George's
whether he did not lie in a hammock ?
Martin. He lay under a hammock.
Mr. Baron CortfT. What distemper <
look upon it he died bf ?
Martin, Some people weM apt to jad
he died of the jaundice.
JoAft Saunderi sworn.
Mr. Ward. Did you know captam
Md.
Saundert. I did ; he waa a prisoner
master's side ; he came on the first of
1725.
Mr. Ward. Give an account of what
he had.
Saunders, It was upon a court day,
latter end of May, captain Bromnel
brought up ftt>m the master's side to tii
men side, and there locked up.
Mr. Ward. Did you see him brought
Saundert. He was brought along by
and Nichols, and Acton followed, and i
him to be taken to the lodge, and iron
from thence they brought and put him i
bole, under the stairs, adjoining to G
ward.
Mr. Ward. How long did he oontiriuf
Saunders, Three or four nights and (
Mr. Ward, Was he let out m that tin
Saunders. He was let out sometimes
they thought fitting, to ease his body.
Mr. Ward, What sort of a place is it
Saunders, It is a place under the
which a woman used to put greens in ;
not fit for a Christian to be in ; there
floor, and a cold place, and there was i
to sit on, but what the woman put her
on, which was an old bn)ken chair.
Mr. Ward. Did you see him there t
Saunders. I saw him every day.
Mr. Ward. What sized man was he?
Saunders, Hewastatlertbannie»and
believe he could stand upright in the hoi
Mr. Ward, Could he lye down?
Saunders. He ctold not Jye at laogl
W2
Jot the Murder ijfjohn Bromfield.
A. D. 1729.
[518
kt dont not Ijre down, it wu so damp and
Mr. Word, \¥ hat did Acton order?
Saumders, Acton ordered hiio to be taken to
hft (^JP^i i^od ironed.
Mr. Baron Carter. What did he order after?
Mr. Ward. Was there any application made
Id Acton?
Smad^f. One Ktn^p attended Bromfield,
aiiSronifieid desired me to go along with him
ItielMi ; And I said it was more proper for
Xr.
\
Baron Carter, Answer my qaestion.
StMmdtTM. T saw captain Bromfield carried
iMt tbe lodge, and from thence immediately
ins the bole.
Mn Ward. Was Acton there ?
SnmderM. I saw Acton there al tlie time
when lie was carried to the hole.
Mr. Word. Was he by when the irons were
fHooP
. Smaiden. He was hv then, and ordered the
^Mtain to be carried /rom the lodge into the
Mr. Ward, Wat he first ordered to the
hte?
Smmiert, That order to carry him to the
bdffs was first gifen.
Mr. Ward. What did he order after f
^nmden. He then ordered liim to be car*
Md into the hole.
Hf.^Ward. Whether ]^ou saw any other
fas or f ioleoce used lo him by any one ?
itmaderg. As to this purpose, Acton came
liMclf. and saw the irons put en.
Mr. ITer^. Were the irons taken off*?
imudert. I heard they were taken off by
Sarand Rogers, with Darby's leave.
Jv. Ward. Where was captain Bromfield
pBi, when he n as taken out of the hole ?
Saunders. He was carried into George's
VH i ] went with him into tlie ward.
Mr. Ward. Were his irons taken off then ?
Saandari. They were taken off when be was
iiod weak.
Mr. Ward. What sUte of health was he in
Ubre he was put into the hole ?
^ Saunders. He apfieared to me to be a man
koerfcGi health ; if ha had any distemper, I
U not know it.
Mr. Ward, Do you believe his being con-
iMd in the bole, and the ill usage, were the
•eesswn of bia death ?
SsKii^ers. 1 do, in my c«uscience, beliere
tktu ware ibe occasion of bis death.
ib. Ward. How long did be Vue after this
mmtt
^ Smaders. 1 believe, from his being first put
iHs tbe Im^s, to tbe day of his death, was
ikut 14 days.
Mr. Wmrd. Did you see him after be was
har
SoMiadtrs. I helped to put him into his eofiin.
Ml bis body was of several colours, black and
Mr. Ward, Were there any marks upon his
**!? Bamndtn. I saw no iiuurks.
' BIr. Harding. Were you with him when he
died ?
Saunders. I staid by him when he died ;
(he said the night before he should not live till
morning) and he gave me his hand, moved his
mouth, but could uot speak.
Mr. Ward. You were with him when he
died; did he declare then, or at any other
time, what was the cause of his death ?
Saunders. The night before he died he de-
clared, that the punishment (which was being
put in irons, and confined in the hole) was the
occasion of his death. In the morning he
could not speak.
Mr. Ward. Was there any coroners' inquest
sat on the deceased ?
Saunders. No, there was no coroner's in-
quest sat upon any one then.
Mr. Baron Carter. If the coroner's inquest
had sat upon all others, and not sat upon thia
mso, then this had been evidence ; but as it is
not geqerally so, it is no evidence.
Mr. Ward. How soou was he buried after
he died ?
Saunders. He was hurried away, I beUere,
the same day of his death.
Martha Johnson sworn.
Mr. Ward. Did yon know captain Brom-
field ?— -Mrs. JoAnson. Yes.
Mr. Ward, Give an account of tbe usage
he had.
Mrs. Johnson. I never saw any thing done to
him.
Mr. Ward. Did you see him in irons ?
Mrs. Johnson. I saw him come out of the
hole in irons, and go into George's ward.
Mr. Ward, Who brou&^ht him out ?
Mrs. Johnson. When the door was unlocked,
he came out of himself.
Mr. Ward. Did you see him after he was
dead ? — Mrs. Johnson, I saw his bfidy.
Mr. Baron Carter, When you saw his body,
did you see any marks ?
Mrs. Johnson, H'i« body was covered when
I saw it, he did not lie naked.
Mr. Ward, We shall call no more wit-
nesses ; for if what John Saunders says is
true, it is a full proof of the indictment.
Mr. Baron Carter, You have heard tbe
charge and evidence against you, you may
now proceed upon your iletieuce.
Acton, CapUin Bromfield stabbed Perkins,
and I went lor a surgeon, and whilst I wae
gone, Bromfield was put io iroos. Mr. Darby
had him put in irons, till the man was out of
danger. After this, he was very well ; and
had the yellow jaundice, of which he died.
As to the coroner's inquest, there waa none
ever sat upon the bodies of any prisonera at
that time.
Mr. Baron Carter. You are not to answer
for that.
Acton. T will call my witnesees. CbU
George Carew.
George Carew sworn.
Aeton, My lord^ooe wituesasays, thatoip-
SI9] 8 GEORGE 11.
taiti Brom6e1d foniiaiied one night in the
bulc, aud the other says, he onntinued two or
three nit-iits. Did you see captain Brumfield
stafi Perkins P
Catcw. Actfin went for a surgeon.
Acton. What was done whilst I went for a
Bur^)u ?
Carew, John Littleton, who was turnkey,
came \\\ witli two or three more, and took
Bromfitld from the pound, and carried him to
the iad^e, t^nn ironed him.
Acton, What was done with him afler?
Carew, He was broufi^ht on the common
side, and there ordered to he put in George's
ward.
Mr. Baron Carter. Who brought him there ?
Carezc, John L^tleton.
Mr. Barou Carter. Did Acton giFe any di-
rectidus for imtting him into the holef
Carew, No.
Mr. Baron Carter. Who pnt him io ?
Carew, John Littleton put iiim in.
Mr. Baron Carter, How long did he conti-
nue there ?
Carew. Three or four hours as 1 heard.
Aci»n, How was he after he came out of the
hole, as to his health ?
Carew. 1 saw him come out of the hole, and
he was very well in health.
Mr. Ward. He has contradicted himself;
he just now said, he was carried from the com-
mon side to George's- ward.
Mr. Baron Carter. If the man mistakes, you
must allow him to correct himself. How soon
after he came out of the hole did you see htm ?
Carew, The next day, J saw him walk about
the yard.
Acton. Please to ask. Whether Bromfield
was in irons before I returned back from the
surgeon.
Carew. Yes, aud he was put on the common
side.
Acton. When did he die?
Carew. He was on the common side a month
before he had any sickness.
Mr. Baron Carter, When did he die.^
Carew. In six weeks time.
Mr. Baron Carter, What distemper did he
die of? ,
Carew. Of the bhuJc jaundicei as it was gifren
out in the craol.
Acton. Did you see him a week before he
died?
Carew. Yes^ and his face was yeUow and
black.
Blr. Ward. You saw him when the scuffle
happened ; he was very well then ?
Carew. I can't 9^y he was very healthy io
constitution.
Mr. Ward. Who carried him to the hole?
Carew, He was carried hj John Littletoo to
the place.
Mr. Ward, Were there qo orders given by
Acton?
Carew* Acton was gone before John Little-
ton came into the poimd for him ; he waf gone
ttr tiie forgiooi tt bt nid ka WDiiM«
Trial of William Adon,
[SM
Mr. Ward. Who carried him td tiie lodge?
Carew. Littleton carried him to the krage,
and after that to the common side.
Mr. Ward, Was not the common side ibntf
Carew, it was then.
Mr. Ward. How dkl he get in P
Carew. He was let in.
Mr. Ward. How long did he continue on tin
common side ? — Carew. Six weeks.
Mr. Ward. Was he not pot in the whole?
Carew. I don't know that he wan in the
hole at all, tor 1 saw him put on the oemnmi
side.
Mr. Harding. After the stroke with the pen-
knife, was not Brom6eld sdzed ?
Carew. No.
Mr. Harding. Whisndid Actop cmnef
Carew, Acton came down when BramfieM
was in the pound.
Mr. Harding. How long was Acton gnnef
Carew. 8ome minutes.
Mr. Harding. Might not Acton gtreorden
to Littleton, before he went for the surgeon ?
Mr. Baron Carter. I must not hang" a man
upon a might or might not. Did Acton come
hack with the surgeon ?
Carew. He brought the anrgeon back, and
stood by till Perkins was dressed.
Francii Cartwright sworn.
Acton. I desire, he may g^ve an aooaontof
what he knows of this matter.
Cartwright. Mr. Acton came out ef the
court into the pound, hearing a noise, and they
told him thatcaptaiii Bromfield had stabbed
PerluDs ; Bromfield was ironec), and Littklsn
put him into the hole, without Acton's direct
tions.
Mr. Baron Carter. Was he in the potind be-
fore Acton came down ?
Cartwright. Yes.
Blr. Baron Carter, Did Acton say any thing
about ironing him ?
Cartwright, Mo, but said, that ho would
fetch a surgeon.
Mr. Baron Carter. When was he taken oot
of the hole ?
Cartwright. He was taken out in about six
hours. They usually lock up the nrisoners at
nine o'clock at nii^ht, after Lady-oay, and he
was taken out, and put in George's- ward, aboHt
that time.
Mr. Baron Carter. How long did he remain
there ?
Carfwright. He staid there three or four
months after the thing was done.
Mr. Baron Carter. Who used to lock the
prisoners up ?
Cartwright. The aeryants to Acton need |o
lock them up every night.
Mr. Baron Career. Answer me another qne»>
tion. What state of health was captain Brooi*
fieUin?
Cartwright. He was always a ferj wvakl^
man, but very mischief ous.
Mr. Baron Carfer. When waabetakmiinf
Cartwright. AUnlmmgom.
for the Murder of John BrmJUld. A. D. 1 728.
10' Carter. Wu lie ill (tliilst you Atlon. tlewdDyi
Ctrtm'igkl. lie WW not ill, only poor (wd «ontiiiiiaUy._
Ur. WarJ When nas BromfieU ironed?
CarlKright, L\tt\et<m ironed him, wbilc
Irw w&* guoe I'ur llie surgeon, anil pul liiiu
U*(b«- hole.
Xr, IFarJ, Where wuh«ironed?
Cvbrri^At. He nu carried Arit into ibe
MfitDil mned, and then |>iil into the hule,
Jr. H'nrrf. Where u (he holef
CtturieAt. On the conimnn iticle.
Nr. Wto'd. Dill yuu see George Carew
Acre?
C^rtwrighl. I dou't boon whelber he ful-
I«*i4 tiim down.
Ur. Ward. Did Carew go ilouif vrilb Ut-
tom, when he nut him inlo Ihe hole f
C«rtBrig*(. I can' I say, whelherhedid or
ML
Jdirph Wood, a sargeon, sworn.
Acttn. Please to BiL him, my lord.if 1 came
bfHch bim.
Mr. Bsroo Carttr. Whstiay you tothM?
Wtod. Aclon came to me, and desired me lu
p ibiag with him ; whidi 1 did, and found «
(sna alnbbed in the breast. TheiiFxtdnyl
WQU la thr person who had wounded him, and
ImM him bow he could be «i barbarous.
Mr. Baron Carter. Thai is not material.
VtMMatt of health did Bromlield seem to be
laf-
well ii
Wiei. BrainSeld seemed to b« pretty
tiltm. Where did you see Bromfield ?
ITnd. li)lfieloil)j:e.
icfoa. Uid you Kiy any ihin^ to bim?
WuM. I aaid, t Bod you are ironed : I ihiok
Jta ittene it ; and he uid, that Darby order-
rf him lu be ironed, and he was glad ActOD
«Nt ■in' B surgeon.
Mr. Ward. AVhat time did you see Brom-
The neil moniing, about
Mr. H'aril. Where did you see him?
u itay there ?
WeaJ. 1 suid Ihere a trining time, about
Uf an boar, and left him there.
JcUa. T ilnir«. my lord, he may give an
MeBiiiii«f Kbit he kuoivs as in captain Brom-
Jma. DnmBeld came in April from the
■miit'i aide to the cmnmun lide, and was put
» imm bT J"hn LilileloD.
A.im. ' llcase to ask what state of health
Jmti. Knimfield waslna wdstate afhealth,
hlU)>iehi>l the gaul distemper, he bad the
JndiM on lum.
Aitim. What did U die of?
Ma. Afnw.
ut^eoii; I took notice
1
lloM did I behave
Broiuiidd f
Jonrt, You were kind tn him at all timet.
Acloa. I'lease to ask, my lord, h'lit I bebar-
ed myself 10 the prisoners m Gfeneral.
Jonft. Acton wonld never suffer any thing or
bardsliip.
Aclan. Hare you seen any acts of I'riend-
ehip?
JontK. Both your pocket and your table liaia
been made use of.
Mr. Baron Carter. Did you tec captain
firomtield pul in Ibe bole f
Jones I saw noboily pul iq the hole.
Mr. Ward, Did t>ot you see Bromfield in
the hole ?
Jones. I never saw him iu ihe bole.
Mr. Harding. 1 b^ leavv lo moke an obeer-
Mr. Baron Carter. You
don't tliiok vuu have used me well before.
^ntleman iiiat is ■ young counsel,
a more than the record.
llariiitg. 1 ogwned DO more I
m
opeoni
fact.
Mr. Baron Carter. Geatlemen oTthejniT,
■lie prisoner at ihe bar stands inilicted fur tne
murder of John BromGeld. The Indictment
sets forth,
You are to consider, whether you have stiffi*
■cient evidence, 10 induce you 10 believe hjm
guilty of this fact. Whatever is opened by
the counsel, that is not proved to von, ia to
bare no weiffhl with you. It 11 set forth, that
he was heal, and that ibe marks and strokes
were itpoD him. 1 don't observe by Ibe evi-
dence, that any stroke was given to the man
at all.
Gentlemen, let the consequence be what it
will, evidence is to determine every man's fate.
The Indictment sets forth, thai Darby waa
keeper of llie gaol nn ihe ISIhof Jnly.andlbat
Bromfield died the second.
The fact is charged precedingto that time;
tbe fact i* laid in April, and all this is laid to be
in the space of hre days.
Wheeler is Ihe first evidence for the king ; ht
snys, that Aclon was turnkey, and servanl to
Darby ; thai he knew Bromtield ; thai he
lodged in the nursery, and coming down Ibe
iluirs, there was a hnlcb upon the stairs, and
Perkins kept the key ; thai he and tbe captain
iiuarrelled, and that thcv went into the chati-
dler's-shop, and quarrelled further, and then
Bromfield slabhud him with « pen-knife, and
thereupon dropt the knife. He was carried
from thence to the pound and carried (ram
Ihence away to tbe iMge, and was refractory ;
but he did not liear Aclou order any thing.
He says, gentlemen, thai he saw fetters ou
him, when he came out of the bole ibe iirxl
moniing-, and ihal he was turned from tha
luatter's to tbe comnuB side; that bia body
523J
3 GEORGE II.
Trial of IVUl'utm Adoti^
wai all over black, and turned oo after bii de-
cease. IleMiys, that it was not iu atreaki), but
one continued hlackneiJK.
Tbe second witness, Hug^h Martin, says, tliat
he knew captain Brotufitld : that be was bis
bedfellow; that he baw the captain in tbe
cbandier's shop, and Perkins refuted him a fa-
vour, and Broinfield stabbed him ; that he did
not see Acton there, but saw him in the yard,
and saw him s^o tu the court-bouse. That he
Mw Bromfield on tbe common side with fetters
on, and saw him in tbe hole, but saw no beat-
ing ; that he continued m there all night, and
the hole is a little place, has no floor, and is
damp ; that there is no place to let in tlie au:
and light, but tbe key-bole and ere? ice. He
says, Uiat he saw^romfield in George's ward
ia irons} that it was three weeks or a month
before he died; that he wanted necessaries,
and that he was apt to judge he died of the
janadice.
On tbe 1st of March, 1725, Saunders says,
that Bromfield became a prisoner ; that Nichols
and Utilaton brought Bromfield along; and
that he saw him ironed by Acton's orders.
This is the only witness that says Acton or-
4arod it. That Bromfield, he belief es, was in
the hole three days, it might be a. little longer;
that the bole was under a pair of stairs, there
was no light, nothing in it, but a piece oi' a
chair that a woman set b«r greens on : that
BnNoifield oonid not stand upright, that he
dared not lie down, because it was so wet ; that
King and Bromfield spoke to Acton to take -the
iroas off, but he could not do it withont Darby's
Older. It was bis opinion that Bromfield was
well, and that tbe hard usage was the occasion
of his death. That he saw his body after he
was dead, and it was of several colours. He
was asked, if he saw any sign of a stroke on bis
body, and he said that it was all of a colour.
He says that Bromfield told him, that tbe
Bsage of tbe hole, and the fetters, were the
occasion of his death, the night before be died.
So tliat what be said is evidence, and ought to
have its weight ; such cruelty iliould not have
been continued.
Martha Johnson ; slie savs^ that she saw
Bromfield come out of the liole in irons.
So that there is but one witness that says he
svas pot there by Acton^s order; and the pri-
soner insists, that he did not order him there ;
and if he did, be did not die by duress, but by
tbe jaundice.
George Carew, tbe first witness for the pri-
soner, says, he was \ha»i and Aoton went Sov
('
a surgeon, and littleton came from the lot
and took Bromfield there, and iron^ him,
put him into George's ward, but that A>
gave no directions ; that he was in there tl
or four hours, and that he saw him well
next day, aud that he walked about the y
That he feU ill of tbe jaundice, and his face
black and yellow a week before be died,
was asked by tbe king's counsel, if be wi
healthful man ? And he said, he was not.
says, that Acton was gone before Littl
came ; so that in his opinion, Acton did
thing ;^ and says, that Bromfield died of
jaundice.
The second witness for the prisoner Si
that he saw Acton run out of the court into
pound, and Aclon said he would go for a i
geon. That Littleton ironed him, and put
mto tbe hole, and it was all done before Ai
came from the surgeon. He was there be
Littleton came, and said, he would go and f
a surgeon. He says, that Bromfield wa
tbe bole six hoars ; that he locked him
every night, and he looked upon him to I
weaK man.
Wood savs, that be saw Brosifiekl (be i
day, and taiked with him about irons ; and
said he was ironed by the direction of Mr. I
by ; aud that Acton was always very kin
him.
Jones says, that Littleton ironed Bronfi
and that it was in April, and be died in Ji
He says, tliat he was a surgeon, and that A*
was always very kind to the deceased.
Gentlemen, in the first place you are to i
aider, whether the man was put into the 1
bv tbe direction of Acton ; and in tbe i
place, if it was done by Acton, and this was
tbe occasion of bis death, you will acquit
as to that. But if you believe Acton ordt
him into bis hole, and that it was the occa
of his death, he was guilty of duress; but
will be contrary, four witnesses to one.
The Jury agreed upon their Verdict imi
diately, without {foiog out of Court.
CL ofArr. Gentlemen, are you all agree
your verdict ?
Omnes. Yes.
' CLofArr. Whosballsay foryou?
Omnes. Our Foreman.
67. of'Arr. Hold up tby bond. (Wbicl
did.) Look upon the prisoner ; bow say y>
Is he Guilty of the murder and felony whe
he stands indicted, or Not Guilty ?
Foreman* Not Guilty.
Jor %\* Murder of Robert Ncwtoti.
[596
The Trial of Wiiliam Acton, for the Murder of Robert
Newton, before Mr. Baron Carter, at the Assizes held at
KiDgston-upon-Thames, for the County of Surrey, August 2;
5 Geobce II. A. D. 1729.*
Saturday, Aiiguit 2, 1739.
William Aclon hirins been befbi
i^eil for the ranrder ofRolwrt Ncn
tbe Counsel proceeded as foDowB :•
arding. AlY Lord, and yoa Qr.u-
r ttie Jury, I am of couniel for (be
Ilia n an mdieliuent igainit William
~ the mnnlcTof Robert Newton. The
It Ml* forth
UriM. My Ion), aoJ you geollemen of
tliia is «n indiclmeut agaimi tlic pri-
he lit, Wiltism dclnn, tor t!it! niur-
cRnbcrtNentuii. It netn lorlhtliil
u priiici|Ntl cmler, and Aclun under
entuQ and Harlneii ncre chunu or
ies; and irbiist Ibey nere there, one
— ited to e«cape; il
■ud Acton cli{ipi
ire ahacklei, and he waa ordered into
tl!e<I the Strong Boom, a iilace, ne
wibfy yon, wai a room not at all Gl
'noaa into. We aay it ii a Tprji bad
d a very dangeroua place to llie heoltli ;
I Newton waa confined for a consider-
e ; there he waa kicked up, and the
t by an inferior officer of the gaol,
on nai to very teniible be was in a
' way, ifaat purely fnr his oivn Eafclj',
irdered him out of tliat ]ildcc into the
en carried him into the bick ward,
noed there tome time, and complained
nrdsliip, thit impritonmetit, and tbe
put upon him by Acton ; and that
le of a mail was his mnrderer; For
lad applied to the judge of the court,
'aa pleased t'l make uu urdcr,atlerbie-
angjy with wbat Aclon had doijc, to
im out of hia hardship ; hut he, not-
lio^, disobeyed thaturder. Therefore,
OUT H ilncsscB to shew lie contracted by
can illness of wliich he languished
. it will remain on tbe prisoner to i-hew
died of, and that he died of aoina other
r ; anil then you will judge of (he
Captain Tudman sworn,
'ord. Did yon know Hubert Newton ?
en. I did i he was a priiuner in Hay
'urd, Gire an accoant of wbat you
iceminiif bim f
the prec«dinf and fullowing CaMs,
Taiman. Newton and Hartnen lay in tb«
Park when Ihey were prisnneni in the iHaralial-
sea; and thtylrokeout, and afierwanig were
retutten, and committed to the prison a^ain ;
anil Acton put them in irons. Newton fell
sick, and languished fiir aome tjrae, and died.
Mr. Ward. Who had tbe care of the pri-
soDers then ? '
Tadman. Mr. Darby waa head nan, anl
Aelon was under him.
Mr. Ward. Was Newtnn ironed?
Tadmiin. 1 went to set! him in tbe lod^ ;
he ff ai ironed there, and then tent lo the StruDor
Room.
Mr. Ward. How long were the ironi con-
tinned on 7
Tttdnum. Til he petitioned air John Darned.
Mr. Strange. If he petitioned, sir Jobu Dar-
nell, and there was any order, they onght to
CrtMloce it in writing, and prore it. It might
e a parole order, and that may be girea Ir
eridence.
Mr. Ward. Did you hear any verbal order
giren by sir John Darnell for hi> releasemeiil f
Tudman. No.
Mr. Ward. How long did Newton lie ia the
Strong Room T
luAnon. I can't gueuattbe lime.
Mr. Word. Wbat waa done afier the ir*Ht
were pnt on ? — Tudman. 1 cannot nay.
Mr. Ward. Whei«did bcdie?
Tudman. He died in the sick word. 1 mr
him four or Arc days before he died.
Mr. Ward. ^nlkLt sort of a place if tt«
Strong Room ?
Tudman. llic Strong Room is ball of irMif,
and is a very strong place to kecppriKWen
iolikeaiheil.
Mr. Ward. If there not a nmmwt leirer
runs under il ?
Tudman. The comnwaieirerlf pntty g^^
it, within tfvenlv ortUrtJjardL
Mr. Ward. Who ma be ifOMrf by P
Tudman. I saw him \«mti \n Darbr
Mr. Ward. Wu Acta bcad-iunj^^y *
Tudman. Yes.
Mr. Mtnh. Was tkn Mr cnrriMr'i *
ic><t sat upon bin afitt ht wtM dnd >
Tudman. Then«MBA
Mr. Harding. Wm A«r anv ~^r.
the ah- ? ' ' ^
Tudman. ThntMeeBhl-; b.iWr
qnc><tsi
MT] S GEOBGB IL
Ikdman, He had no iUdcm before he wis
pot in irons ; be was a hale> sirong', young
Etbnund Carr sworn.
Blr. Martk. Did you see Newton in the
M&rsbalsea ?
Carr. 1 was a prisoner there when he and
another broke out ; they were taken again,, and
carried into the lodge, and when 1 saw them
eome out of the lod^e, they were brought
along by Rogers in irons, and put into the
Strong Room, and he looked them up there.
Mr. Baron Carter. What was the name of
the other?— Carr. I have forgot.
Mr. Baron CflF^. Was it Uartness ?
Carr. Yes.
• Mr. Ward. How long did he continue in the
Strong Room ?
Carr, He continued there two court days,
which it about fourteen days.
Mr. Ifar<^. You knew Newton. What state
of health was he in before he was put in that
room?
Carr, T knew Newton very well ; be was a
fat, jolly young man^ and seemingly very
well
Blr. Ward. When did he die ?
Carr. He fell sick in the Strong Room, and
was carried to the sick ward.
Mr. Ward, How long did heliTe after ?
Carr. I cannot tell.
Mr. Ward, What was the distemper he had
in the Strong Room ?
Carr, I do beliere that it was the gaol dis*
temper he took in the Strong Room.
Mr, Baron Carter. What is the distemper
ef the gaol ? — Carr, The ague and jaundice.
dlir.iVard, You say he took the distemper
in the Strong Room ; do you beliere that was
the occasion of it ?
Carr, I do belieye that did occasion the dis-
temper.
Mr. Ward. What irons had he on ?
Carr. Double irons ; an iron on each leg,
snch as I had.
Mr. l^ard. What might the irons weigh ?
Carr. Twenty pounds, or less.
Mr. Ward, Who was with him when he
waB4brought from the lodge ?
Carr. I saw nobody but Rogers and Clark.
Mr. Ward. Did you see Acton in the lodge ?
Carr, I did not look in to see if he was there
er not.
Mr. Marsh, Who ordered the irons to be put
on ? — Carr. I don't know.
Mr. Marsh, Did Acton go to the Strong
Room ? — Carr, I can't iell.
Mr. Marsh, Was Newton locked up there ?
Carr, He was locked up erery night clotie.
Mr. Marsh, Had he liberty of coming
eut of days ? — Carr. Not at first.
Mr. Marsh. How long was he confined in
the Strong Room, before he had leave to come
oat ? — Qarr. I cannot tell.
J Mr. ilerti. HowleogwaaheintheStFong
Room before he feHsickr
1
Trial of WUliamAciaih
Carr, About fourteen daysor moi
Mr. Marsii, What sort of a p
Strong Room ?
Carr, It is a boarded plsce, an^
damp ho|e under it ; and there is t
carry the water off.
Mr. Marsh, I ask you, what kin*
it is ? Whether there is any place i
air ; and whether.tbe sun fisits it?
Carr, It is an odious place, and tl
a little hole to let hi the air ; it is b
the side of a wall, and the sun does i
it is coTered with boards, and seemi
deck of a ship.
Mr. Mursa, What was the occs
being taken out of that room ?
Carr. He was taken out for sickm
Mr. Marsh. How long was he in
Room in all ^-^Carr. About fourteei
Mr. Marsh, How Ions; did he lie
Strong Room? — Carr. I cannot tell
Mr. Marsh, Where was he cai
taken out of the Strong Room ?
Carr, To the sick ward.
Mr. Marsh. What condition was 1
carried to the Strong Room ?
Carr, He was ?ery well ; he tl
hale, jolly man
Mr. marsh. Were you witli him
ward? — Carr. 1 was almost e?ery d
Mr. Marsh. How long before he i
Carr, \ cannot tell.
Mr. Marsh, Was it within a day o
Carr. Within a week.
Mr. Marsh, Did he tell you wbi
occasion of his death ?
Carr, He said, that the confinem
Strong Room was the occasion of his <
Mr. Marsh, Do you believe it to
casion of his death ?
Carr, He being a hale man, and
fresh^ I believe the confiDement was
sion of it.
Mr. Marsh. Wastbereany coronc
sat upon his body?
Carr. There was no uiquest sat uj
any other.
Acton, Please to ask, my lord, if
not let out of the Strong Room.
Mr. Baron Carter. What say you
Carr, At first they were not, hut ;
they were.
Mr. Baron Carter. What becam*
ness? — Carr, He was let out.
Mr. Baron Carter. Did he lie tin
as the other ? — Carr, Yes.
Mr. Baron Carter, Did he contra
ness? — Carr. No.
Mr. Baron Carter. Were his iron
as Newton's?
Carr. I can't tell, I never weighed
Mr. Baron Carter, The question
is, whether the irons were one as he
other ? W hich I expect y on to answ
Carr, I believe they were coeifaal
Mr. Baron Carter. Answer meanc
tioB. You were saying there was m
a»]
Jor the Murder of Robert NeiiaoH.
A. D. 172$.
[590
MnToffthewiter; where does the water oome
■ r
Cmrr, There wm a place abont as biff as the
in the Court, where the water settles, and
QDdcr the room, and makes it damp.
Mr. Baron Carter, What ill smell is there?
Carr. A sort of a damp smell ; and abun*
of rats creep into it.
Vf. Baron Carter. When the* prisoners are
kt Sit of days, is the door always kept shut or
Mtf
C^r, Sometimes it is locked up, sometimes
Mt
Edicard Phitiipt sworn.
Mr. Ameron. Did you krow Newton 7
PkiUipi, I was a prisoner in the Marsbalsea
hm^ tne time Newton and Ilartnecs were in
Ihctaol.
Mr. ^sieron. Did von see him in irons ?
PAt//u». I saw Acton and Rngrrs in the
WjR when they were ironed.
tf.Amenm. Where were thev carrieil afler*
FkUiips, They were carried to the Stron^^
Bmd.
Mr. AmeroH, What kind of a place is it f
fkUUpt. It is a pbce not fit for a human
yowilo be in.
Mr. JsMTun. Is the common sewer under it f
flUlm, The common sewer runs by it.
* Mr.Asitron. How long did Newtou stay
ioef
fhittim. About fourteen davs.
Mr. Jmerun, How near is the common sewer
Hitf
Hilfyi, The soil that comes from the neces-
ni^-house runs within three or four yards of
n.
Mr. Mar$h. Was it infested with vermin ?
hiliips, 1 saw rats there, and the side of a
MS*! face cat away in three or four hours at-
Iv he was dead.
Mr. Marsh, What mi^ht be the weight of
it irODs Newton had on ?
PkUUps. The irons he had on were twenty
pntds weight.
Mr. Mar$h. How long was Newton in the
kiise Room before he was taken sick ?
fkiilips. Ten or tweUe days.
Mr. Marsh. What became of him then f
fkiUips. He was carried to the sick ward.
Mr. Marsh, How long was he sick in the
liskK Room?
tiSUips, J cannot say.
Mr. Marsh, Were his irons taken ofi*?
FhilHns, Hb irons were ^ken off, I belie? e,
t|f srtitioo.
Mr. JlfsrfA. Who was the other man ?
?hilUps, The other wan one Hartuess.
Mr. Marsh. How was he as to his health ?
fkiliips. Vm well.
Mr. Marsh, What sort ot'a man was Newton ?
PkUUps, He was a robust man.
Mr. Marsh, From the time of his l»eing put
hi mto thesick ward, to the time of his death,
W was be?
FUUfpi. He continued to grow worse and
•MiiUbedicd.
VOL. xvn.
Mr. Marsh, Did he say what wis the occa-
sion of his death ?
Fhillips. I heard him say, that the ill nsage
and confinement were the occasion of his death.
Mr. Marsh, What was your opinion of hiu
before he was put in tbe Strong Room ?
F hiliips. My opinion is, that he was a strong
young man when he came in.
, Mr. Marsh. When did he tell vou that hi$
death was occasioned by his oonnnement and
usage ?
Phillips. I beliere it was some days after
he was in the sick ward.
Mr. Marsh. What, in your opinion, was the
cause of his death ?
Phillips, My opinion is, that the confine-
ment and usage were the cause of his death.
Mr. Marsh. Was the prisoner at the bar in
the lo<lge when the irons were put on f
Phiiups. The prisoner at the bar was there
with Roff.ers when they were put on.
Mr. Marsh, Was there any bed in the Strong
Room ?
Phillips, There was no !)ed there ; and if he
had had one, ,they would hare prevented it's
coming in.
Mr. Marsh, Do you know of any appficatioM
made to Darby, in relation to Newton ?
Phillips. No.
Robert Smith sworn.
Mr. IFord. Did you know Newton ? .
Smith. I knew Newton very welt ; I knew
him to be a lusty, bale man ; and that he was
confined iu the Strong Room eight or ten days,
or more.
- Mr. Ward. Did you see him in the Strong
Room ?
Smith, I never saw him but through the hole.
Mr. Ward. Did be complain of bis irons ?
Smith, Yes.
Mr. Ward. Did you draw a petition for him ?
Smith. I did.
Mr. Ward. You have seen the Strong Room,
what sort of a place is it ?
Smith. 1 have smelt noisome stenches, and
seen persons dying in it.
Mr. Ward. Was it damp?
Smith. I believe it was damp ; I saw it once
open.
Mr. Ward. Was it open when you saw New-
ton there ?
Smith, No. I saw him through the hole ;
nolK>dy was admitted to him then.
Mr. Ward. How often were you there ?
Smith. 1 was there twice or thrice in the
middle of the day to see him, and the door was
always shut.
Mr. Demotet vworn.
Mr. Ward. Did you know Newton ?
Demotct. I knew Newton before he come in
de |>ark, (which he spoke in a very broken
manner) ; 1 cannot sjieak F.nglish well.
Mr. Ward. He is a foreigner, and can*!
s|>eak Kngfi&h to l)e understood, therefore we
desire he may be allowed au iuterpreter, wbe
is here ready.
S M
531]
S GEORGE 11.
Trial of WilHam Acion,
[5»
Acton, He can speak English rery well ;
here is one that heard him, who ean prove it.
Mr. Baron Carter, When I went the Oxford
circuit, the Welch would not speak English,
because it was a dishonour to their country. I f
he can talk English to he understood (which 1
•hall judge of when he is examined), I can't
allow him an interpreter.
AJr. IVartI, Give an account, as well as you
can, of what vou know of Newton.
Deniotet, I knew Newton the time lie hroke
out of the room ; he was retaken three or four
mouths after, and was carried into the Strong
Room very soon in the morning.
Mr. Ward. How long did he contimie (here ?
Demotet. He continued there fourteen or
fil\een dayv, and lay on the ground, and had
nothing to keep him there.
Mr. Ward. VVas he ironed?
Demotet. He came ironed out of the lodge.
Mr. Ward. Who brought him out of the
lod|ife? •
Detnotet. R(»gers and Nichols brought him
down.
Mr. Ward. Was Acton there ?
Demotet. Acton came and saw Newton
locke«l into the Strong Room. When he uas
first put in, capt. D&gol was confined there
at the same time.
Mr. Ward, Was Newton sick in the Strong
Room?
Demotet. lie fell sick there ; both of them
were lousy ; his wife and young child came
to take care of her husband, and petitioned to
sir John Darnell to liave him released ; he was
put in the sick room, and there died in four or
five days atler. His wii'e broke her heart, and
she and the little child died in the same week.
Mr. Ward. What was the occasion ol* his
being sick ?
Demotet. That he was on the ground, he
had no bed to lie on, and the water came in
at the top.
Mr. Ward. What kind of a place is the
Strong Uoom ?
Dcjiiotet. It is not fit to put a man in, the
rain comes in.
Mr. Baron Carter. Were you ever in it ?
Dtmotei. I was in it myself; Grace put me
in there.
Mr. Baron Carter. How long were you in
the Strung Room ?
Demotet. I was in there for ten minutes,
and there were two dead men in at the same
lime, and 1 iell sick for five months.
Mr. Manh. Was it infested with rats ?
Demotet. It was very much infested with
rats and vermin.
Acton. Do you know Hester Overstoun ?
I Detnotet. I do not know her. (Ail spoke in
broken English.)
ilfar(Ao Johnson sworn.
Mr. Marsh. Did you know Newton ?
Mrs. Johnson, 1 did, he lired in the park,
' OD the master side, before he hroke out.
^^r. Marsh. Did you see him confined in
rung iioom P
Mrs. Johnson. I never saw hhn conffaicd in
any pbce, but I saw him in irons.
John Johnson sworn.
Mr. Ward. Give an account of what you
know of Nen Ion.
Johnson. I paw Newton in the Strong Rom.
Mr. Ward. What sort of a place is it ?
Johnson. It is a close place.
Mr. Ward. Is it fit to put any one in ?
Johnson. It is not fit to put a man into.
Mr. Ward. Was there any smell there?
Johnson. There was a noisome smell, nd
so there was on all the common side.
Mr. Ward. Is it moieor less healtby than
the other rooms on the common side ?
Johnson. They are all unhcahhy, h is mocb
the same as the rest.
Acton. I desire he may be asked, when be
went to captain Delagoll m the Strong Roon,
if the door was open.
Johnson. It was open ; it was opened for
me to go to shave him.
Ruth Bullcr owom.
Mr. Ward. Did yon know Newton f
Mrs. Butler. I remember Newton very well ;
he was confined on the master side in tbe
park, and there broke out ; he was rettkca,
and brought to the prison again, and put into
the Strung Room by Mr. Acton'a order; I
heard Acton give the orders.
Mr. Ward, Was he ironed ?
Mrs. Butler. He was ironed on both legi;
I heard Acton order them to be put on.
Mr. Ward. How long did he continue in the
Strong Room ?
Mrs. Butler. He continued there a good
while, more than a month ; he was sick there.
Mr. Ward, Mow long was Newton confined
in the Strong Uoom ?
Mrs. Butler. About two months.
Mr. Ward. Are you sure it was two months.
Mrs. Butler. I really think it was so kmg.
Mr. Ward. When was he taken ill ?
Mrs. Butler. He fell ill in the Strong Room,
aad continued there some time after he was
taken sick, and then was carried to the sick
ward, and died in three or four days after ha
was put there.
Mr. Ward. When were his irons taken off?
Mrs. Butler. His irons were taken off in
tbe Strong Room.
Mr. Ward. What was the occasion of his
sickness ?
xMrs. Butler. I can't tell what it wat oe-
casioned by, unless by the rain and wet that
came in.
Mr. Ward. ^Vas it covered at top ?
Mrs. Butler. It was boarded at top, buttbO'
rain came through the top, tbe hoards not be-
ing close enou^rh to keep the rain out.
Mr. Ward. How near is the common www
to it?
Mrs. Butler. The common sewer nus jMl
by it, and smells very offensive.
Mr. Ward. Had Newton any bed tbtivP
BIrs. Butler, No.
Jiir ihe Murder of llotierl Newton.
ttf. Ward. Wm Ub. fit place lur aaj-
His. BuiUr. It wu not fit foe aay mi
Mr. U'ottl. miRlgaTctlieDiunliissuikQras?
Mr. U*iai> Carter. Slie bos aoiwered that
Hr. tf'ard. Did lie make any coroplniot ?
Hn. Bailer, lie coiDpluiiieil tiis leRs were
«niilti the i(iiD9; I &aw Kin te^ wlieo liia
■Mrititip wem off, in the sick ward, snit hix
lc|t »vn iwclled, the irons being too liglil far
Urn.
■/. Btran CW/er. Will you ask her any
Nicholai Pvrdett sworn.
Mr. Wurd. Do yaii know the Siroog Bxton T
PunJcit. I wai in it aeieral times, n hcu twu
anha^pv meu were In it, who came f'roui (lie
King S'UCDth. Efi-ry lime it raina, the ram
ran* I hniu|{h, anil there Haggle*, till it dries
ihrBuiih the hoards.
Mr? Baron Carter. When wu that?
Piitiicn. About a year and a hatl'ago.
Mr. lUron Carttr. That is ahort at ifie time
U LatJie indictincol.
Hr. Ward, t allow it short of the time.
Edmund Cnmniiiu svroru.
ilr, Ward. C
Ibb« of Newton.
Cmumiri. I remember Newton't being put
laibrHiraiig Kuam; at that lima it rainnl
M^jcidrd Iwtwera the joials.
t of what JO
li. H-afd.
Did il ram
inwl
en Nenton
inf
It did rain
uihe
n, and ao i
.ere.
Had No,
,n,. I «au
him
Iota
in iron* in
Mr 11 .,nl
What kin
phce «ai
Qmmmi.
It was wet and
dirt,, the
MMgtbfonebMthil time;
aiid it t^as
"STua
-Kr
whole
«,me pl«:e
A. D. 1729.
', Gire an account or»bat
Mc Watd, We Uiall call no more wit-
Mr Barau Caritr. Now, priwiicr, any what
;M<ill.
Atlm. On the 20th day of July. Hartncss
ltd Nvwioa hroke out of gaol, and weic re-
hUn in Kent, and hruu)(ht to the (plot ; and I
ttmulivt a mHieauier to Mr. Utrby, lu kntiw
iit would bare thtm put in irooi; and he
IK ward back, they abould. They were not
pa b that niffhi, but were put in
s the
_L day, aniTwcnt about the yard ; and in
4nit tight or uiiM ilayn linie were discbarjjcd.
!(f«t«n waa afliirwarils taken ill, and put in the
■t: waid, MtA there died.
tioUrt Bvimaswom.
J'ln. PlcaMtoaak biiD, what he knoHi
Mr. Baron ('ai
,.« ta».
Uuhiit. Nenlan escaped out of a roiiia in
the park, and was retaken and brought to the
!;aul, and I helped one of ihem doWu into the
Dd[{e, and Avlnn bid me ijO ta Mr. Darliy, 10
know hoiv to dispose of ibem: and Onrliy'i
orders nei e to iron them, and put them in the
Slroiik; Itoum.
Aclon. Please In ask, my lord, if he brought
Ibe message l>ack tn me, or any other persoii.
Solmei. I came back lo Adnn, and told
him, that Mr. Darby's orders were lo have
ilieiii |iut iti the IStrnng Ituoin, and ironed;
and (be uexl day tbey were put in iraus by
Grei^iiwoy and NichuU.
Atloa. Did Darby rawe there the next
day ? — Rahnti. Vet.
Ailaa. Please lo ask, if they were locked
up mid unlocked, OS the rest of iheprisoners.
Ilolma. Yes, they were.
Air. Uaron Corfer. What iraus bad they «n?
HoliHa. CuraiBon ironi, as tiut felou dbmI
nir. Baron Carter. How long were they
conlinrd there ?
Holma. Seven or eiffht nii^ls.
nir. Baron Carter. What day did they ooBH
in ?— Holma. On a Thursday.
Mr. Baron Carter. How long were they in
irona?— iW>n«, Seien or ei^ht days.
Mr. Baron Carter. What conditivu of hestlb
were they io then ?
Holmes. In perfect i;ond health.
Alton. How lon^ did Newton routinuesoi
aiier he was taken out of the Strong Koum ?
Holmec. Newton went into the Uuke'a ward,
and siiid there six weeks, and was in p>od
health all thai time ; 1 drank with him seteral
limes, and played at trap-ball with bira.
Atton. Plfase to auk, whether his (rieadi
did nnl bring him necenariea.
Ilulmet. There were his wife and sister
i^ame lo htm ; but Hartness's wife did more
than either.
Aiion. Whatwastbecauseofhisdealb?
Holmet, The gaot.dialeaiper ; there ware •
great many sick at that time.
Actim. Were other |»cnuinssid(ortbeiame
distemper at the same lime i"
Ueinei. It ia iny opioion, but 1 can't be
certain.
Acioa. WIiatthinkyoueflheSsroogUwtmF
Holmes. 1 think it ia the h«t room on the
common side for any two or three to lie in, and
1 hate knowD several desire to lie there.
Mr. Marilt. Consider with youraalf, that
many persons have said, that he lav 14 or 1>
daya in lb* Strong Room, and was tlieDcerriad
lo the sick ward ; and you say , that b* was lix
weeks in the Duke's waid.
Holinr.t. It wua when he was lakrn out of
tlie (Jtrnne Room, and carrird to the Duke's
ward, he got his illiieaa. (o tli« beat of my know-
Nr. Marih. When wm be taken, oiler the
539]
GEORGE II.
Trial of William Acton,
[MO
. Mr. Ward, IHil you nolhtog' but tbree-
pencf? — Berkley'. No.
- Mr. Ward. Who iras you appointeil by ?
Berkley. The iut>n in thv gaol chose me.
Mr. Mard. How came ihey to choose you ?
Berklet^, They look luc to be a sober,
modest woman, and so chose lue.
Mr. fiarou Carter, You see you have an
Boswer ; she is a sober, modest woman.
Mr. Ward. But it is difficult to get the truth
out of ber.
John Boswell sworn.
Acton. Did you build the Strpng Room?
BotaoelL I did ; it was made to put pirates in.
Acton. Is it a wholesome place ?
Bow^ll. It is a very wholesome place ; it
is Dipe inches from the ground.
Mr. Baroo Carter. Is the common sewer
under it ?
Boswell. It is not, it is twenty(four feet from it.
Mr. fiaroD Carter. How coqie you to know
it?
BoswclL Because I measured it^ sev^al
tjmes.
Acton. Was there a covering at the top ?
BowelL It was covered with whole deals,
imd pitched and tarred.
Mr. JIf or rii sworo.
Acton, Do you know the Strong Room ?
Morris. I do^ and it is better than any
ground-room on the commoa side; there is a
•tep up above the surface.
Acton. Please to ask him, what business he
is ? — Morris. 1 am a carpenter.
Mr. Bacon Carter. How is the room cover-
ed?
Morris. With boards, and I think there is a
tarpaulin at top.
Mr. Baron Carter. How near is the common
ftewer to it ?
Morris. It is above eighteen feet from it.
Mr. Boron Carter. Is it offensive ?
Morris. I don't think there in any thing of-
fensive.
Mr. Ward. Do you know when it was built ?
Morris, it waa built about four or Ave years
ago.
■ Overston sworn.
Acton. What did yon hear Mr. Demotet say
concerning mc?
Overtton. I heard Mr, Demotet say, he
would hang Acton, right or wrong, to oe an
exampU to all other gaolers ; and that he was
maintained by some gentlemen to bang him.
Mr. Ward. Uow long ago was it that you
Lennl him say this ?
Overston. It W9i the fourteenth day of July
last, in the cellar of the Fleet prison.
Mr. Marsh. IIow came you to be ift the
Fleet?
Overtton. I went backward and forward to
the Fleet.
Mr. Marsk,, What are jou ?
Overston. k servant/ 1 rive in FeUiir-JIfff ^
Mr. Demotet was called, to confront Overston.
Mr. Marsh. Du you know that wouiau?
Demotet. I do.
Mr. Marsh. What was it you said to herf
Demotet. 1 saiil, I would say nothing ta
the tnith, and do nothing but what the law re-
quired.
Mr. Marsh. Overston, What was it Demotsi
said to you ou the 14th of July, in the Fleet
prison ?
Overston. lie was in the ceRar there, and
said he would swear against Mr. Acton, right
or wrong, in order to make nn example of bim.
Deomtet. I said, I would say what wastmth.
Elizabeth Clayton sworn.
Acton. What did you hear Demotet sa^ ?
Clayton. In the cellar in the Fleet pnson ?
Mr. Marsh, Mistress, hold ; were not yeua
prisoner in theMarshalsea ?
Clayton. 1 was a prisoner tbere tweire
months ; but bearing that Demotet bad sworn
against Acton, 1 had a mind to talk with hin
about it ; and he said, that Acton had killed a
hundred, and that he would be revenged id
him, if he swore himself to the devil.
Mr. Marsh. She was a prisoner in the Blar-
shalsea. how came she into the Fleet ?
Mr. Baron Carter. How came you there?
Clayton. I went to Mrs. Overstoo, she was
at one Mr. Solas wife's.
Demotet. (In a passion.) She is an old basrd,
and brought whores to Solas.
Mr. Baron Carter. You most not beban
yourself ill to witnesses.
Demotet. What she has said, is not trno,
John Hull sworn,
Acton. Please to ask him, what Demotet de«
clared to him.
Hull. Mr. Demotet declared, that be would
hang Acton right or wrong, to be aa exanple
to all other gaolers.
Mr. Ward. There is a very remarkable dif-
ference in the witnesses, in i-elatioa to the place
the man was supposed to go tu, after he came
out of the Strong lloom.
Mr. Baron Carter. Gentlemen of the jory,
the prisoner at the bar stands indicted for ine
murder of Robert Newton ; the iodictoieDtsets
forth, that he put him, against hia will, into a
place called the Strong Room, and kept him
there fourteen days ; tnat there were unwhelr
some, noisome smella ; that it was damp and
wet, and that he got a distemper there where-
of he died. To prove this, they called lefcral
witnesses. The first wan captain Tudman; he
saya, that he knew Newton ai|d Hartness, and
that they broke< out; and ia a month or two
after, Newton was taJ^ again, and brought
into the lodtre, and ironed, and theD rimo^
into the Stroikg RiMm-; be savf, Ibat ifiere is a
little bole to put in drink ; and says« that beSs^
Newton went into this |4ace» ha WW| a.lMd%
strong yoong GbUov*.
fo, the Murder of Robert Nni^lon.
iUrtnm. I wu in (lie room irilh NewtOD,
mi brhml jIh^ thne.
a*. Rvna Curler. Hwl be'ilierty top>om?
Barlmta. He liid lilierij lo goout orilmys.
Mr. Btrhn Corltr. Wlipu hr trentuut ul'iUe
iiHig Room, wliere illd lie (^ ?
ffn-fni-a, I think liirwFnlinlolhfttck ward.
Br. Jijri'o Carter. Wlieii be wrul oul of
.glieP
ir buslitnil
, Very well,
if. Bron tWrr. J
Wtrt br wu Iflkeli ill
Scfncii. lie wBii not ukeo ill
Mr. tUmn C.ir/tr. Where JiiJ y.
fi. vliM lie Iclk the Strung lloorn i
Htrtitat. Into ihe l'.-titi<>riiii|{-raoiD.
Ur tUn>ii Catlrr. )lo^< lung iliil Nevloo
hi >ftn h* went out of the Hlrong Uoom f
Kirfwn. Six w«eki, or belter.
ictm. PIcnse to atk bei'. U niie captain De-
Birlnr.
Il<
mil my biiilianil and
Brum were very glad thai they were I'a-
imthI in iniji^, ill having so [f'''>J "geutle-
' I ■■■. he having caiiilte iberc.
■ : ( 'iriiT. What sort oln place tvat
. Ii wif clean anJ dry; I cotild
f )m »uhcil m^ hiuhand there uJl the time.
^""^ I. PIcaK 10 uh, loy lord, whether «he
mptuin ofill u9a|,'eP
'Ion complain
and tliai they
Mr. Barou Carltr. Did Nt
Wihe iroiii bad burl iiia legi
tmiittWeil ?~-BerliMii. Nu,
ft.BirooCarrer. Who were tbeiroDttnken
ArtMii. Tbey nere taken oiT by Darby's
icfm. P1e«ae lo aak, if NewloD ever com-
fbalorme?
Strtnat. I DDver heard him cay a misa
mrioTjoii.
ilrtn. Please to ask, my lord, if she ap-
fU U Darby to hate the irons taken off.
BtliutM. i went lo Darby on a noitrt day,
Ml he w«l. be would bave them off.
Mr. M'arJ. >Vho do VOU live with ?
Ibrfum Oiie col. bniiit.
Mf- WtrJ Where don he live ?
lUrUia. He lives laChtrlei-ilreel.CoTent-
Mr. irnr<f. Was jour liuiUnd
waidf— Hurini-M. So.
Mc H'nrii. How en ii Id they lye Iflcethi
Harliteit, 1 Rpokeofthis bel'orf they wi
m
;s not say a word
lay in the peti'
a ibesick wacd.
Ur. W^d. How «
wImiW Bm«tnf
ilvtacn. 1 am cerranl locolond Brown.
Mr H'larW. IVfaal i> your hutbniid ?
Bvfnfft. lie ia cvok to the capt«iu ol' i
Mr. Ward. Whm did Ntwfoo lie after hi
naw Ml of ih* flirone Room f
Acrtaeu. My huawuid and Newlou wen
» it liial yuo lire wilb
Hr. WarJ. I tfX|ieiAedyou worse than 1 find
{•■■ Aher )our hiislmtid Came out ur the
WMf; BowD, nhrri! ivm be carried to i
" ' TvUwi^iltOoiiig-rooiii.
Mr. RsfOii Curler. She d.
as to the Strong Hooin ; oni
tioning-room, anil the other
Mary Be< klry sworn.
Aden. Do you temenibec Newi
the Strong Itoom f— Berkley. I dd
Actoa. Hud he n bed Ihcre ?
Berkley. He had.
Acton. What kind ofa place is the Sttoos
Room ? **
Berkley. It is a boarded room, and floored
Uittuni ; ii was every day washed ; 1 naib-
Mr. Baron Carter. Did be not complaia of
any bardahiij?— BrrftW. No.
Str. Baron Carter. Wliere did be ^<t when
lie came out of the iSlrong Room i"
Berkley. He went into the Duke's ward.
Air. Baron Curler. How long was he there f
Berkley. Seven weeks.
fllr. Baron Cur/<r. Where did Newlon fall
ill?
Btrkley. In the Duke's ward.
Mr. Barou Carter. Did you sea Newton
Berkley. 1 did see him, I wasaurse; bis
distemper was the eaol distemper, an ^ue nnd
lever ; lie woi taken ill with a shivenog and
nil*. Baron Carter. Did you look after bim
all the lime he was ill ?~BerkUv. Yea.
Mr. Baron Curft^r. When did be die?
Jkrklry. He died in Noveraber.
Mr. Baron Carfer. Did he complain of any
hard usage ?
Berkley. No; he went about wilb hisfellcn.
Artmi. Did you see him after he died?
Berkley. Yea, I washed bim; hewBsa*ery
clever, clean corpse, wiltiout spot or blemish.
Mr. Marsh. Did you see no marks of the
irons?— Birftfaj/. No.
V^t.Mar^h. Did yon wash iheStrong Room
with the water that fell from the heavens?
You dried it uu
Mr. Baron Ctrler. Did it rain in f
Berkley. It never rained in there; It trai a
idfv , neat place.
"Mr. I^orrf. Have yon no office in the gaol 7
Berkley. I looked after ihesicb.
Mr. W'urd. Had vouanysllowanceuonrse,
and by whom paid f
Berkley. I bad no allowance.
Mr. Ward. Hod you nothing paid you ?
Berklty. Who shonld pay mef
Mr. Ward. What did yoa do it for ?
Berklty. I did it for Christianity sake.
Mr. Baron Carter. Di4 Acton make yoti any
allowance f
Btrktey. I bad three-pence a-piecelVoro the
"-' that came into ibe ward, which «a»
Ifaelwr.
laiJal
M3]
S GEORGE II.
Trial of WaUam ActoUt
[M
plaint, but just before be was carried there : He
liad a {(ooil opiuion of the Strong Room, and
requejitfHl to work there, and says, that he let
•Newton bate a bed; which contradicts all the
other evidences. He was asked about the
beds, and said, that he got theiii by his savings,
mud that he let them out to hire.
Haitness says, that she knows very well that
Kewton had a bed, and her husband and he lay
together, and a captain was there ; that she
never found the room wet, nor any thing like
it ; that they went ont of days, and were lock-
ed up in the Strong Room of nights ; that
!Newton was six ^eeks or two months, before
he died, in the Duke's ward ; that her husband
received no damage. She says, that it was a
clean room ; that she never heard Newton com-
Slain of his irons,- or ill usage of the prisoner,
he says, that she went to Darby to liave the
irons taken off, and he ordered them to be taken
off, while she stood by, and gave directions ac-
cordingly.
Burton; she says, that she saw Newton in
the Strong Room, and she saw a bed ; so there
are three witnesses as to that. She says, she
washed the room every day ; it it very extra-
ordinary, after so many nave swore it to l>e
▼ery duty. She says, that he never did
complain of the prisoner ; that he went
into the Duke's ward for seven weeks; that
she was curse, and that he died in No-
Tember, and died of an ague and fever ;
that she laid him out, and never saw a finer
corpse ; and that the rain never came into the
Strong Room. In order to take off part of her
testimony, site was asked, Whether she was
not obliged to tlie prisoner at the bar? She
said, that she was nurse, and that she had three
pence a-niece of those she took care of;
and that she was chosen by the free election of
the prisoners.
The prisoner called two or three others, to
the Strong Room.
Boswell says, he built it, and that it was
very wholesome, and it was twenty four feet
from the common sewer.
Morris says, the Strong Room was very
wholesome, and that it wal better than any
ground- room on the common side, and that
there was* a tarpaulin at top.
Ovcrston was called to impeach the credit of
Demotet. She says, that in the Fleet cellar,
she heard him say, that he would hang Acton
right or wrong, as an example to other gaolers,
to deter them from being rogues. The pr
jtnner called two others. EliMielh Clavtog
she heard him say, that he would hang A^m
though he sent himself to the devil ; aodih
other, John Hull, beard him say, that he wool
hang Acton right or wron|f . — ^Demotet beia
called to confront these witnesses, denies k
ever said what they assert he did.
This is the evidence on both sides ; then
fore yii't will consider if Acton caused bira i
be put into the Strong Room ; for if he did nc
then he must lie acquitted : If he did put hii
in, you arc to consider, whether this plaee
such a place as ihry have set forth.
There is not a single witness for the kii
that does not give the same account of ll
Strong Room : It is pretty extraordinary, thi
to a man the witnesses should remain m oi
opinion for the self-same purpose ; their won
were, that it was not fit for a human creatm
to be in.
The witnesses for the king say, that he die
in two or thrcie days alter be was taken out <
the Strong Room ; the others say, that be lif
ed two months ; therefore consider, ifjie wa
put in this room, and it was not the eccisw
of his death, he ought not to be found guilt]
in that he was very wdl for a month, aooi
say six weeks after ; and that he fell sick of tk
gaol distemper in the sick ward.
If he did nothing in relation to the ironf, li
must be acquitted as to that.
If the room was such as was fit for a ma
to be put in, there was no harm in patting bii
in there.
If he did not die by duress, by being put i
that room, I believe he must be acquitted o
thitt head.
If he was put in the Strong Room by ActOE
against his will, and it was so unwholesom
that he can*;lit a had distemper, and died of il
you must tind him guilty.
The Jury agreed upon their Verdict immc
diately, without going ont of Court.
CI. qf'Arr, Gentlemen, are you all agree
in your verdict? — Omnet, Yes.
CI, of Arr. Who shall say for you?
Omncs. Foreman.
Cf, of Arr, William Acton, hold up tfa]
hand. (Which he did.) Louk upon the pri
soner. How say you, Is he Guilty of the felo
ny and murder whereof he stands indicted, oi
Not Guilty ? — Foreman, Not Guilty.
for the Murder of James Thompson.
A. D. 1729.
[54«
be Trial of William Acton, for the Murder of James
liompson, at the Assizes held at Kingston-upon-Thames, in
iirrey, before the Honourable Mr. Baron Carter, August 2 :
Geokge II. A. D. 1729.
ftlr. Btron Carter. He was asked, who pat
bira into the Strong Room f And he told yoa
the ward company.
Cummins, My lord, I could not say so.
Mr. Baron Carter, 1 heard you say so.
Cummins. My lord, I heard you just now
indulge a witness lor the prisoner to explain
herself. I thought your lordsliip ' woulo not
take so much notice of one of the king's evi-
dence making a mistake. I came here to speak
the truth ; and if your lordship will not gire
me leave to explain myself, 1 will go down.
Mr. Baron Car/er. Indeedyou behave your-
self very impertinently ; but go on.
Cummins. Mr. Acton did say that was the
reason, that the ward company com^ned of
him for making water.
Mr. JMarsh. How long was Thompson in the
Strong Room?
Cummins. He was there five or six days ; I
saw him whilst he was alive there ; ne laj
there on nights, and had no bed.
Mr. Marsh. When you saw him theie, what
condition was he in ?
Cummins. I saw him in a had conditiott.
Mr. Marsh. Where did he die?
Cummins, In the Strong Room.
Mr. Marsh, Did yon hear Acton say any
thing about it f^^Cummins. No.
Air. Marsh. Did you see him after he was
dead ? — Cummins, I did.
Mr. Marsh. How long was he dead when
3'on saw him P
Cummins. He was alive over night, and I
saw him dead the next morning. He had only
a nicht-ffown v^ith him.
Mr. Marsh, Did you see bis face P
Cummins, His face was disfigured with the
^turday^ August 3, 1739.
M ACTON having been before ar-
r the murder of James Thompson,
d Not Guilty, the counsel proceeded
Idieton. My lord, snd yon gcntle-
} jury, I am of counsel K>r the king,
nentsets forth —
M our witnesses to prove the fact.
rsh. My lord, and you gentlemen
ff the evidence for the king against
er at the bar for murdering one
Hnpson, is to this effect : that the
had the misfortune to be troubled
letes ; and, according to the account
liat distemper, it does occasion [)er-
id a great deal of water. Tlie pri-
10 far from compassionating of him,
t him against his will into the Strong
I he lay there ten days or more in a
.on ; that no regard was had to him ;
re sufSered to continue without a bed
side mortified. It was a very bad
me of the witnesses for the pnsoner
I account of it, that it was ouilt for
pirates : this place was built up for
is now said by the priMner to be tKe
in this gaol. One of the witnesses
:ause spoke of the pirates being put
hen Thompson was in this place,
lone ; his miserable couditiun was
1 to Acton, and he made use of a
expression, * Damn him, let him lie
perish.' We will call our witnesses
e fact, and it must be left to you to
iicther he is guilty or not.
vus so little care taken of this man,
le was carried into the Dtikc's ward,
^erefl to be put again into this place,
lied.
Edmund Cummins sworn.
rsh. Did yon know James Thomp-
nmins. Yes.
rsh. Whose care was he under ?
f. He was under the cure of Anton.
irsh. Who put Thompson in the
Dm?
I. He was put in the Strong Room
rard.
r$k. What was the occasion of his
there?
I. I don't know what was the reason
»g pot there ; but Acton gave that
t the ward company complained of
rats ; I saw the riarks.
Mr. Marsh, What was the occasion of
Thompson's death ?
Cutnmins. He might die by lying in that
room.
Mr. Marsh. What do yon, in yonr opinion,
believe to he the occasion of his death?
Cummins. I believe his being put there was
tlie occasion of his death.
Mr. Marsh, How soon was he buried aHer
he died ?
Cummins. He ^^as hurried away in an hour
or two «ifler he dieil, and was buried.
Mr. Marsh. Who gave any orders for hurr}'-
ing him away ?
Cummins, The men carried him away that
used to do it.
Mr. Marsh. When was he carried away ?
Cummins, The very same morning he died ;
in two hours aAcr.
3 N
547]
S GEOBGE IL
Trial tfJamt$ Thampiont
[648
Mr. Monk, How long was he in the Strong
Room?
Cummimt. Five, liz, orteren days.
Mr. AfanA. Had he any bedlo he on ?
CummtMM, He bad not.
Mr. Alarih. I ask you, whether you saw
him carried to the Hooog Room, and whether
ActiNi was present ?
Cummin$, Mr. Acton was there; and the
man was unwiHiog to go, and desired lo stay ;
hut Actoo said, he should not.
Matthew Brandon sworn.
Blr. Monk, INd yon know captain Thomp-
son ?
Brandon. I did ; he was in the same ward I
belonged to, which is called Pomp ward.
Mr. Marsh, Had be any infirmity ?
Brendan. When he was in the ward he
maile a little water ; and some complaint was
made, and he was turned into thetkrong Room.
- Mr. Marsh. Did you risit him when he was
there .^
Brandon, Several times.
Mr. Marsh, Did you hear Actoo give any
orders about his being there?
Brandon, 1 diil not.
Mr. Marsh, How long did he lie there ?
Brandon. Ten days ; then he was remanded
back to his ward, and lay there one night ; and
then remanded back, omd put in the Strong
Roomaeain.
Mr. Marsh. Did he tell yon any thing ?
Brandon. He lold me, that he was unwilling
to go back to the Strong Room, tor ttiat it would
he his death.
Mr. Marsh. Did yon visit him there?
Brandon, 8ever:il times ; and the first time
I saw liim he had nothing to lie on, and 1 fur-
nished him with a piece of a blanket, and after
with a piece of a <|uilt.
Mr. Marsh, [lo»v long was it liefore he died
that you saw him ?
hrandon, 1 saw him two days before his
death.
Mr. Marsh, What condition was he iu ?
Brandon, He could not stir ; three or four
days before he died, he lay on his left side.
Mr. MarsL Did you not see one of his hips
very sore, angry, and had ?
Mr. Baron Carter. You know you muit not
lead the evidence.
Brandon. Thero was a very bad, angry,
sore place.
Mr. Marsh, Where *vas it?
Brandon, it was in one of his thighs.
Mr. Murkh. When did you see it ?
Brandon. It was so when he was in that
room ; I don't remember it before.
Mr. Marsh, Did capt. Thompson complain
to you ol' any thing ?
Brandon. He complained, before he went into
the Strong Room a second time, if he was to
go in there again, it would he the deatli of him.
Mr. Marsh, How many days was it atier he
was put in again to the Strang Room betot he
died.
Brandon. I can't justly My, but I b«li«v«
about six or eight days.
Mr. Marsh, Where did he die?
Brandon. In the Strong Room.
Mr. Marsh. Did you see him aflier he was
dead?
Brsiid<0fi. I saw him the next nMnniiig aHir;
hia thigh looked not quite so wigry, hot them
was a sore place there.
Mr. Marsh. Dkl you, in behalf of the cap*
tain, make any apphcation to Actoo ?
Brandam. NVilsoo, Cnmmios, aod myself
went to Acton, and represented his csooditiou to
him, and desirvd he would be pleased to let hia
go to the sick ward ; and Acton bid Wilaou go
about his business ; and that was all the UMwer
we conM get.
Blr. Marsh, When yon Mw hiai after hs
was dead, did you see any marks about him F
Brandon, f saw his nose and ear, and part
of his cheek eat away.
Wdliam Jennings sworo.
Mr. Marsh. Did you know James Thsap-
son?
Jennings, Yes; he wasaprisootf htba
Marsbalsea, in 1726. tz
Mr. Marsh, Had he any distemper then?
Jennings. He had no distemper whsu bu
first came into the ward.
Mr. Ameron, What was the oocasioo tf Uft
being removed outof tlie ward?
Jennings. They found fault that he mm
troubled whh a diabetes.
Mr. Ameron, Did yon hear Actoo give woif
orders to carry him to the Strong Room ?
Jennings, Acton did order him into the
Strong Room.
Mr. Ameron. How long did he remain thcref
Jennings. He remained there eight or teo
dayH, at first, aod then was pot into the Pooip
ward, and stayed there two nights, and tbca
was put iuto the Strong Room again.
Blr. Ameron. Did Acton order liim in agaio f
Jennings, 1 heard Acton order him to Se po^
there agaio.
Mr. Ameron, What were you then? ,
Jennings, 1 was then one of Acton's wstch*
men ; I went to see the gentleman, and b«
said, he should certainly perish if continued m
that place ; and I desired Acton to have hii9
removed ; and Acton said. What business hsv«
you to meddle with it? Let him die like a SO0
of a bitch, and be damned.
Mr. Ameron. What, in your opinion^ wa#
the occasion of his death ?
Jennings. I believe his lyiog tliere io thaS
place was the occasion of his death.
Mr. Manh, It was represented to be a cleap
room, was it washe<l ?
Jennings. 1 don't believe it was.
Mr. Marsh. How long were you beloogni|^
to the Marshalsea?
Jeanifil^j. 1 lived lour years out of ac? cff
there.
Mr. Marsh. Wii it wadwd 4ttbBf Ihii
time?
519]
Jirr the Murder tfJamet Thompton.
A. D. 1729.
[550
Jemmimgi, It was very seUom, if erer washed.
BIr. Mmr$h. Did Toa ^o into the room ?
Jemmimgs. I have been in it aeYeral times ; I
lAve rouvh swept it.
Mr. Aiartk, is it dry at top P
Jtmmings, No, the rain ouroes in.
Mr. Mchardton. Had capUio Thompson
csBMiitled anj crime before be was put in
thtfc? — Jtnnmgt, No.
Mary Seathand sworn.
Hr. Marth, Did you know capt. Thompson ?
SmMb^nd. I remember him ; he was a pri-
swr in Pump-ward, and he was remof ed from
tkmot into the Strong Room ; but I don't know
Sfsn what occasion.
Mr. Manh. By whose order was he carried
ttsn t^SeoibaruL By Mr. Acton's.
Mr. JMsrtA. How do you know ?
Sniiand, Thompson said so.
Uv.Manh. You never heard Acton give
•dfis?— &u6ani. No.
Hr. Marih, Did you see captain Thompson
vWa in the iiitrong*Room P
Senbaud. 1 did ; he had no bed to lie on,
Hi the wet was under him.
M'* M'^''*^' ^0^ i<>ng was it before he died,
All yoD saw him ?
SidMML I saw him the minnte he died.
Hr. Manh, Did he tlien declare any thing
^ititband. He declared nothing to me then ;
kl tbree days before be died, a gentleman
oaeiato see him, and Thompson told him,
ilstski be tlie occasion of his death if he was
HI removed.
Nr. \Iartk. What condition was he in in
iWtJironglloom?
SuAaid. Hi« lefl side mortiOed, which was
*KiiioBed by his hard lying ou the ground,
litfioibewet.
Mr. AfartA. Was not part of his face eat
Itijr?
Smband. The rats had eat out his lefl eye.
Mr. Marih. How long did he continue in
Ae Strong lioom?
Seoibaii. 1 can't say how many days, 1
* Mere he was there three weeks.
Mr. Manh, How do you know that his
■M was eaten away by the rats ?
Staiband, I have reason to know, for they
*trs very troublesome when I was there.
Mr. Marsh. -Was it a proper room to put
^9 0De in?— Sras^flfu/. No.
Mr. MarMh . Was it swept ?
SeoMband, I never saw it swept ; 1 was in it
&•• the first of January till the sixth, night
asdday.
Mr. Manh. Was it washed ?
Seatband. It was not washed while 1 was
|Wis ; there were several barrows- full of dung
Mr. AfartA. What was there in it ?
Statbaad. Wet, and straw, and dirt
Mr. Marah. How did it smell ?
9mba9d. Very badly ; 1 have seen there a
Ms if rats at a time.
Actan, Please to ask, what time of the day
ptain Thompson died.
Mr. Baron Carter. What say yoa to that ?
Heatband. He died about six o'clock in tha
morning, and was buried before ten.
Actim. Who gave directions for his borial?
Scatband. 1 don't know.
Acton, Was there any person to view tha
body ? — Seashand. There were no searchers.
Acton. Who sent you to capt. Thompson f
Sea$band. Nobody sent me, I went of my
own accord ; I carried him twice mutton broth*
Thomas Snape sworn.
Mr. Ward, Did you know capt Thompson P
Snape. Yes, be was first in the Pump- ward,
and went from thence into the Strong Koom.
Mr. Ward, By whose orders ?
Snape. I can't tell ; he was removed from tba
Pump- ward to the Strong Room, and was there
for some time, and then went into Pump- ward
again, and was there some small time, and
then carried back again to the Strong Itoom.
Mr. Ward. How long did he continue in the
Strong Koom the second time ?
Snape. He was there nine or ten days both
times.
Mr. Ward. Did he die in the Strong Room P
Snape. Yes.
Mr. Ward, Did yoa see him, after be was
dead ? «
Snape. Yes, I saw his corpse laid out, and
his side was very bail ; it was black, and turned
as to ff mortilication.
Mr. Ward, Hon* long was it before he died
that you saw him P
Snape. Three or four days.
Mr. Ward. Did he make any complaint P
Snape. No.
Acton. Was he confined there all the time,
or did Le go about ?
Snape. I saw him go out and in to the
Strong Room.
Mr. Ward. When was he laid out?
Snape. Between six aud seven o'clock ia
the morning.
Eleanor Ewer sworn.
Mr. Ward, Did you know captain] Thomp*
sonP
Ewer, I remember the captain ; he was in
goml health when he went into iraol.
Mr. Ward, Whim did he die ?
Ewer. He died the 9th or 10th of July.
Matthew Bacon sworn.
Mr. AfariA. Did you know captain Thomp«
sonP
Bacon. I did ; he waa arrested and put into
prison the latter- end of May, 1726. 1 remeni*
berhewas brought into the Pump -ward, and
continued there three weeks; and then was
removed to the Strong Room ?
Mr. Marsh. How long did he oODtiana io
the Strong Room ?
Bacon. He lay there about ten nights, and
«then came into tlie Pump -ward, and tsmainail
631] 3 GEORGE II.
m niiifht or two ; and from the pnrop-ward,
If ent back again to the Strong^ Uoom.
Mr. Marsh, How long was he in the Strong
Room the seeond timeP
Bacon, He was th^re aboDt ten days more
before he died.
Mr. Marsh. Did jon see him there, the
latter-part of the time, before he died ?
Bacon, I did.
Mr. Marsh, In what condition did he lie ?
Bacon. He had bundled up a piece of a
blanket to lay his head upon.
Mr. Marsh, Did be make any complaints of
his hardships ?
Bacon. He said, a day or two liefore he
died, that the cruel usage, and lying hard,
would kill him.
Mr. Alarsh, Did he complain of any sore,
or hurt, or of his side ?
Bacon. 1 can't say he did ; but after he was
dead, his left hip appeared black.
Mr. Marsh. What, in your opinion, was the
occasion of his death ?
Bacon. The hard and cruel usage was the
occasion of his death.
Mr. Marsh. Was the Strong Room washed,
or swept, or kept clean ?
Bacon. It was not; andif any person swore
so, they did not swear true.
Mr. Baron Carter, Were yon there every
day ? — Bacon, 1 can't say every day.
Mr. RicharHson. Was it fit to put a roan in ?
Bacon. It was contrived for a punishment,
for people who had committed great crimes
against the rrovemment.
Mr. Richardson, Were there other rooms
fit to put Thompson in f
Bacon, Yes, there were.
Mr, Richardion. Was there any application
to have him removed ?
Bacon. There was none by me.
Peter Purchace sworn.
Mr. Ward. What part of the prison was
Thompson confined in ?
Purchace. He was first in the Pump-ward,
and waj taken out of that room contrary to his
inclination, and put in the Strong Room.
Mr. Ward, How do you know it was con-
trary to his inclination ?
Purchace, He oHen itaid so.
Mr. Ward, Did you see him removed from
the Pump wanl to the Strong Room ?
Purchace, Yes.
Mr. Ward. Was he carried there?
Purchace. No, he walked there.
Mr. Ward. You were by when he went iiito
the Stn»ng Uoom ? — Purchace. Yes.
Mr. Ward. Were you by when Acton ijavc
orders to carry him there? — Purchace. No.
Mr. Ward. Who was with Thompson when
be went there ?
Purchace. Nichols and Rogers went along
with him ; and they said, they bad orders to
go to the Strong Room.
Mr. Ward, How long did he continue in
the Strong Room f
Trial of William Adon^
[503
Purchace, I can't be certain of the time.
Mr. Ward, But yon saw him in the Strong
Room?
Purchace. I freqtiently Tiiited him in the
Strong Room.
Mr. Ward. Did yon obserre thmt it «w
washed or cleansed ?
Purchace. It was not, during the time I was
a prisoner tliere.
Mr. Ward. What land of a place wai it ?
Purchace. It was a wet, damp, nasty plaee,
not fit for a Christian to be in.
Mr. Ward, Do you know of any applieetien
made to Acton concerning captain TfaomniOD?
Purchase. Wilson and I went to the loi^to
enquire for Acton, and told him, that ThompsiMi
said, the confinement in that miserable place,
would be the cause of his death, end ne do*
sired to be removed to another plaee ; but
Acton would not hear us, but bid oa go ibavt
onr business.
Mr. Ward. When did you see him laat, be*
fore he died ?
Purchace, I saw him the night befim be
died ; and be then said that the coofintmcnt
in that place would be his death.
Mr. Ward. Did you see him alUM be wu
dead ?
Purchace, I saw his body ; he bad en hti
thiti^h something like a mortification.
Mr. Ward. What was the oecaaion of bis
death ?
Purchace. I believe lying upon the bare
boards was the occasion of his 'death.
Mr. Ward. Was there any water in tba
room ?
Purchace, At some times there was ; when
it mined, the water came in at top ; I have
seen the rain come in.
John Wilson sworn.
Mr. Marsh, Did you know captain Thomp*
son?
Wilson. Yesr, he was committed a priaoner
the latter- end of May ; he was a fimnight or
three weeks in the Pump- ward.
Mr. Marsh. What sort of a man was he ?
WUion. He was a hearty, strong man, of a
merry disposition, singing songs, and chonia'S.
He was in the pump- ward, and aAer was pot
into the Strong Uoom ; some people came to
fetch him, and said it was by the order of
Nichols, Rogers, and others.
Mr. Marsh, [low long did he remain there?
Wilson, fie remahied there a week and
better, in a bad condition.
Mr. Marsh, Had he any thing to lie on F
Wilion, He had on a banyan camUet night
go»'o, but lay upon the bare floor, which was
wet with the water that came in.
Mr. Marsh. Where did the water come
from ?
Wilson, It came from the top of the room ;
I saw it rain through.
Mr. Marsh, Could lie come ont ?
Wilson. He had a power of coming ont oT
the room in the day-time, but he bad ao power
553]
fw the Murdtr cfjamet Thompton.
A. D. 1729.
[55i
of cMDinif to Ue aoy where cbe on nighti ; be
Uy two days in tlie Pump- ward, and then was
pat into the 8lrone Room a^^n ; and then de-
sired me to (^ to] the Petitioning room, to get
him into another place.
Mr. AlariJL Did you make any application
iahia behalf?
Wilstm, f went nfith Parchate to Acton, bnt
wit not beard,
■r. Mmrsk. What did Acton say to you T
WUmm. I began to tell the story relating to
lWaan*s misery, and Acton said —
Mr. Marsh, What did you tell Acton ?
Wibon. I said, he would perish if not re-
■sfsd ; and Acton bid me gt> and trouble my
bead with my own business.
Mr. Marsh. Did he order him to be taken
•at af the Strong Room ?
WUtoHm No. — 1 then went to the nurse of
the adc ward, to desire her to entertain him
is that ward ; and she would not do it, because
Ai had not orders ; so he continued in the
Strong Room rery miserable. 1 took him out,
M put him in the chimney corner to dry
kimelf ; and when he came to dry himself be-
fert the fire, he smelt 7ery ufflj^ and nasty
(tUi wtt after the second time of his Gfoing into
Ae Strong Room); then he went back, and
hjTcnr miserably for three or four days.
mt.Ward, Did you ercr see the Strong
Jloom washed?
WiIkhi, 1 ne? er saw it washed all the time
IW csptain was there ; within these twelve
BMQllii, or within these six mouths, it has been
vakcd.
Mr. Ward, Was it covered at top ?
Wdton. There was a tarpaulin laid over it
klriy, since be was there.
nr. Ward, What state and condition was
itJD when Thompson was there ?
Wilsnn. It is in a better state and condition
I liaTe seen tho water pour in, and it was
is u bad a state when he was there, as ever ;
aad tbere was uo tarpaulin put upon it, till
aitbin these twelve months.
II r. Ward. How was the floor?
WUion. The floor lies five inches higher
Ibtt the ground, but the boards not being
Ibick, they were grown rotten, with the great
M of water that settled there afler a rain, for
Ibe room was worse tlie next day.
Mr. Ward. What, in your conscience, do
yon bdiere to be the occasion of his death ?
iriVjoR. I believe, in my conscience, that he
W seemingly of a strong constitution, and
noiinued the same till his going into that
Hwo ; and thgt tlie severity of the weather,
M his hard lying, were the cause of his sick-
m, of which he languished and died.
■ Phillips sworn.
Nr. Marsh. Did you know captain Thomp-
PkUUps. Very well ; he was trouble^l with
yfattes when hr first came in ; he was put
2 the Pomp-ward, and there he continueil
or m month; he was then removed
1
to the Strong Room : 1 saw Acton and his two
servants there. '
Mr. Marsh. What condition was he in ?
Phillips. lie was in a very miserable, de-
plorable condition, for he had that distemper
when he went into the Strong Room ; he was
offensive to the rest of the people of the ward.
Mr. Marsh. Did you visit him in the Strong
Room ?
Phillips. I frequently went to him.
Mr. Marsh. How long was he there beforo
ha died ^-^PhilUps. Ten days.
Mr. Marsh. Did you see him therein a
good or bad condition r
Phillips. He lay in a miserable, deplorable
condition.
Mr. Marsh. Did yon make any application
\q Acton in his behalf?
Phillips. 1 had endeavoured to speak to him^
but nerer could meet with him.
Mr. Marsh. How long before he died waa
it that you saw him ?
Phillips. I saw him the night before he died.
Mr. Marsh. Did he make any complaint to
you?
Phillips. He said, that lying in that condi-
tion would be the death of him ; and said,
that it was by Acton's order that he was put
there.
Mr Marsh. When did he say this ?
Phillips. Some da}s before he died.
Mr. Marsh. Did yon ever see the Strong
Room washed ?
Phillips. I was in the gaol nine or ten
months, and never saw it >« ashed.
Mr. Marsh. How long ago ?
Phillips, Two or three years.
Mr. Marsh. Did it rain in ?
Phillips. The rain did come in ; I saw pud-
dles oi' water in it several times.
Mr. Marsh. Was it flt to put any one into ?
Phillips. It was a terror to every body to
go there.
Mr. Marsh. What do you believe was the
occasion of his death?
Phillips. I believe the diabetes, and lying in
that manner, were the occasion uf his death.
Mr. Marsh. Was there any other room
empty, fit to put him in ?
Phillips. There \^as n room over against his
own ward that was empty. There was another
room empty, and proper fur any body to be
put in, railed the P^ titioning room.
Mr. Marsh. Hud he any murks about him
when deud ?
Phillips. I saw a wound, and put my fist in,
whii'li looked as if the flekh had been gnawed
away.
Mr. Marsh. There was a ward called the
Sick ward ; was there ri»om tliere for captain
Tliompsiin ?— Phillips. Yes.
Mr. Marsh. We shall call no more witnesses,
There is strong evidence given as to the fact
and the Sirontic Room.
Acton. With humble submission to your
lordship, captain Thompson was put into the
Pump ward, and a complaint came from cap«
555] S GEORGE It.
lain Thanpson ; I will acquaint your Inrdihip
« liat wu tlic TnaiitKA' of it. Captain Thoin|i-
Bon hail ihe diabcln, and his ward-inates aaicl
ho stunk, and fintid him, aiidtook hii coat from
him, and carried it away, anil tbe man liad not
money to redeem it, or wlicrewitbal tn i-aiae
any, and desired he lAighl goto aome place
wliere be might be in peace ; I aiked hun, if
there was any particular person he deaired to
be with, or if'he would go iutu the aick ward?
He laid, he had rather go into the Strong Room,
for if he tfent into Ihe aick ward, they would
fiae him there again.
Chritlopker Coiling anom.
Aetmt. I deiire lie may |>iTe an account of
ilut be knows abnut ca^itain Thompaon.
Coiling. I WW tilline; at tliu toige door, and
captain 'I'hompion caiue np to Acton, and de-
aired him to let him go into the Stron); Room ;
Acton sai<l, lie might go into tlie sick ward ;
tiid Thompson aaid, the men in the ward had
tormented liiin so, that he had rather lie in the
l^rnn^ Room ; and Acton made aoswer, you
may he there.
Mr. Baroa Carler. What did they torment
lliui about?
Cmling. About piuin(c ; be pissed very
much there.
Mr. Ilarun Carter, What answer did Adon
mak« him ?
Omling. lie bid him do wliat he would.
Aetoa. Whm he was in the Strong Itoom,
did Uiey not use to torment him *
Golfing. Yea.
Mr. Barou Carler. How Innz did be lie
iXitnt— Catling. fiTe Or tix weeks.
Actoit. Pleaise to ask him, if captain Tliomp-
■on did not ^ay he was mucli beholden to me.
Gotling. Ilesaid an.
Adoa. >Va» there any anger, ur any thing
between us? — Gosling. No.
Acton. Dill nut cnptain Thompson say, he
desired to gi> into the titrung Room ?
Gulling. Hecxpressty desired to beremOTcd
into the Slrontf Room.
Acton. Uaii lie a bed there ?
ilo you r.ill a bed ?
Oosliig. A pillow and blanket
ftlr. Richardson. Is it very usual for people
to lie in such beiU ?
Robert Halmeityrom.
Acton. V\tnie to luk, if he did not cnmc to
me from captain Thoinpsoo, and what was hix
Mr. Baron Carter. What cay you tn that?
HiiliHCi. lie was so tnrmpnlcd by tlie ward,
that he desired me to i>:a tn Mr. Actiin, lo deiiire
him to let him (cn|>tHiu Thompson) go into the
Mtron-; Itonm ; and I atkeil Mr. Acion, and he
||ivc liim leave, auU ofTered him to go into the
■ick ward.
^ctou. Whatwutheoccaaionof hiideairing
to go there?
Hal-net. lie naa0D»ul7,U»tlh«w>rdcbid
Trial of William Atton,
[SM
bim, and hecouM lye awett anil dean in Iha
Strong Room.
Hr. Baron Carter. Did Thompaan came np
alonn with ynu ?
Holma. He did ; he was not uck at IbU
lime, but some time afler he fell sick and divL
Mr. Baron Carler. Did he make aay ooai-
plaiot?
Helmet. At Itut lie did make complaint, Ibit
he was ill, butdidnotthendrwreubcrrleaMd.
Acton. Had be liberty to go in and oat of
tbe Strong Itooin ?
Uoiina. He bad, whnwrer he pleased, anlj
some unlucky fellows locked him in.
Mr. Ward. Had be liberty to be oat ?
Holma. No.
Mr. Ward. I ask yon whelber Actiu went
with him to the Strong Room T
Hoimci. I can't say be did ; he gun )aat
lesK to go into the Strong Rootn.
Eliiaifth G mil n^ sworn,
Mr. Barnn Carttr. How came captain
Tlinmpson to be in tlie Strong Room ?
Mra. Gosling. Bv bis own dcBre; be waf
tronhled with an infirmity.
Mr. Baron Corfcr, How duyouknowit waa
by his own desire?
Hr«. Goiling. f heard him nv so.
Mr. Baron Carffr. Had be liberty toga eot
night or day t
Gotling, He bad the liberty to come in ani
Mr. ITorrf. What aTe you?
fore of Mr. Biirteigb, and coulinues under Hr.
BenjnmiTi Broirn sworn.
Mr. Baron C'arirr. Wbalduyou knowabonl
Thompfon?
Brown. He said, God blcM Mr. Acton, {<K
. he had died.
Air. Richardirm. Did he gif e any p
reason why lie sh<iulil lisve died ?
itroErn. That if he made water in Ihe iMia
be was to pay a quartern of gin.
Mr. Ricliiirduin, Did yuu tiiit bim in lb*
Strong Room?
Urovn. I oIlenlimMrisiledhim. '
nir. Rifkordson. Had lie a bed ?
Brotrn. Hehad agaol bed.
Mr. Baron Carter. Had he the libettj rf
going in and nnt? — Brown. Yea.
Kir. Richardson. Was not the Strong RoM
a place of cnutinement ?
Bnitrn. Yes; but when I was a priMncr, I
had the li belly of thegate, baring sereTalcaosS
in my own right.
Marii Barton sworn.
Acton. What did you hear captaJa Tbonp-
son say ?
Uta. ilarfoa. 1 heard him caj ibathaidMa
if]
/or the Murder of Jamts Thompson*
A. D. 17S9.
[558
iveto lie in the Stroncf Room, and tliat be
is disturbed in his own ward.
Adorn. Please to ask, if he did not say, that
I bad rmtber eo to the Stronnf Room, than
melo the sick ward.
Mr. Baron Carter, Answer that.
Nn. Barton, He said, he mii^ht ha?e gone,
\ be would, into the sick ward, bat he bad
iribrr go to the Strong Room,^ btfcause be
omM be there in peace.
ilcfm. Had be a bed in the Strong Room P
Via. Barton. Yes, such a bed as |KN>r |»eople
ie as, a flock -bed ; it was a broad w>later,
which be could lie at his whole length, and
toa himaelt' upon, such as they bad in the gaol.
Hr. BaroD Carter. Was be looked up on
ij|^f — Mrs. Barton. No.
Vkr.Ward. 8he is kept by Acton ; she had
Ihifc-peiice out ot'efery prisoner.
Mr. BarOD Carter, *8be was put in by the
|tM€nieo«
Mn. Barton. Yea, or else tbey would bare
iHflho gaoler to pieces.
John Bowdler sworn.
Bflpd/cr. I was in the ward when captain
IWmpsoD went out; and the wanl being un-
m with him, be said lie would make interest
tilr. Acton to go into the Strong Room ; and
kioak his bed and bedding, and went into
ieflinngRoom.
Mr. Acton, Please to ask, whether Thomp-
M toM him he had nuide interest.
Bawdier, Tbompaon said, that he had asked
bMfsf Acton, and be bad granted it.
— Davenuh sworn,
Dnenith. In the month of June 17^6, 1 was
*M into the Pump-ward to captain Tbumpson,
udliis ward-mates swore at him, and called
hii oasty son of a hitch. That his ward-
Ms were very uncivil ; that he was troubled
^ a diabetes; and he said, lie wuiild desire
lib. AeiOQ to let liiui go to the Strong Uuom ;
*s4 tbe next day I saw a wnnoan washing of it.
VIkb be was there, 1 asked him several times
if JM wanted any thing; fur Air. VVitiiiigham
■id, be would relieve him if he w anted for auy
IbsK; and he said the woman of the sick ward
cunc to bim, and be wanted fur nothing.
Robert Walker sworn.
Mr. Baron Carter, What do you know about
ttptiin Thompson ?
Watker. He was carried to the 8tronsr Room
^kit own ounsient; and asking him the next
**aiag bow be did, be said, Extraordinary
an,
Mr. Baron Carter, Had be a bed tliere ?
Ifatter. Yes.
Mr. Bsrou Carter, Did be complain of any
mm?
Watker, I saw tbe people making game of
Mr. BaroB Carter. Was he locked up on
^^^-^Waiker. So,
^<(«i. A Dun« ftst up with bim on nights,
Mrs, Conisor; sbe had been nurse of the sifk'
ward.
BenjiAnin JohtiMon sworn.
Mr. Baron Carter, What have yon to say
to Thompson's consenting to go to tbe Strong
Room?
Johnson. I spoks to him two days before he
went there ; and he said, he should be glad if
Acton would grant bim the favour of lying
there.
Mr. Baron Carter, Had he a bed there T
Johnson, I saw him carry his bed there;
and he thanked God that Mr. Acton was so
good to let him lie there, for he hoped it would
be tbe saving of his life.
Balpk Malban swore.
Mr. Baron Carter. What do yoo know of
captain Thompson ?
Malban, I can say nothing, but that when
I was in the ward one night 1 saw a great deal
of abuse offered him ; and tbe next day I asked
him hnw he came to suffer such abuses ; and
he said he had a noisome distemper, and so
they abused him; and in a month or three
weeks I saw him again, and he then said, be
had leave to get into the Strong Room, and
thanked God for it.
Thomat Fletcher sworn.
Mr. Baron Carter. What do you know of
Thompson ?
Fletcher. I know Thompson bad the dia-
betes, and that his fellow- prisoners did often
reflect ufMin him. I was out of prison, and
then came in again, and I asked Thom|><toii
how he did ; he said. Very well as to his health,
ex(*ept as to the diabetes; and Acton had given
him leave to lie in the Strong Room.
[Here the Prisoner rested hi» Defence.]
Mr. Baron Carter. Gentlemen ^f the jury,
the prisoner at the bar stands indicted for the
murder of one James Thom|>!»on. The indict-
ment sets forth, that the said JamesThom|»Bon
died by duress, so that tlie priiiouer was there-
by ffuilty of nmrder.
There were several witnesses called for the
king. The first was Edmund Cummins; he
says, that he knew Thompson very well ; that
he' was iu the Pump-ward, and thnt lie was put
in the Strong Unoni, as Ac.tou said for having
the diabetes, bome of the ward complaining of
his being nasty ; that he canie out wometimes,
and he hHw liiiu alter he died ; and he was
very quickly buried ; and he saw a mark ujion
his'face. He says, that Acton did order his
burial, because lie was curried by those that
usually c^rry corpse to hu buried, lie says,
that he was resolveil to stay in the ward, ami
uould not have gone out, but Acton would not
let him stay.
Mattiie%v Brandon vayn, he saw Thompson
in the Strong Uoom, ami he did hear the pii-
soner order hiiu to lie put there, lie s:iyS| tliit
there wag a courplaiut of the uard that lie
5593
3 GEO£GE II.
Trial qf JVilliam Aetoitf
[SflO
WB8 nauseons : that two days before his death
liR could not stir at all ; that he had a sore
plaoe on his left side, and he says, that he com-
plained if he hIioiiKI go there again it would
D(> the death of him. He says, that Wilson
and Cummins went to Acton, and they repre-
sented the condition he was in, and desired he
might go to the sick ward ; and Acton said to
Wilson, Go ahout your business. He says,
that there was a mark upon his nose and ear,
and the wound was not so angry after his death
as it wns before.
Jennings says, he was not to ill when he
came there, but only had the diabetes, and
the prisoner ordered him into the Strong lloom
where he continued eight or ten days, and
Mien came out for two days; and then was
ordered back by the prisoner. He desired
Acton to have Thompson removed ; and Acton
(aid, Let him die like a sou of a bitch, and
be damned. He said, he died the next morn-
ing, and died in this Strong Room. That the
Strong Room was seldom washed, it was rough-
swept ; but what he means by that 1 cannot
see : be says, that it was not dry o?er head.
Mary Seasband says, that he was removetl
into the Strong Room, and Acton gave no or-
ders concerning him ; there was some wet un-
der him, Init she does not explain from whence
it came, therefore it might come from the dis-
temper. She says, that his side mortified;
that there was some disfiguration on the side
of his face, it was eat by the rats. She thinks
it a very strong room, and it was not a proper
place to put any person in ; thai it was never
washed ; that abnut six in the moruing he died,
and was buried about ten.
Snape cannot say, whether Thompson went
by his qwn consent or not ; but that he went
from the i'ump-ward to the Strong Room,
and staid nine or ten days, and then staid two
or three days in the Pump-ward, and wont
back again, and staid nine or ten days both
times. He says, he came in and out when
he pleased. lie says, that he saw his corpse,
and one side of his thigh was black ; he suw
liim three or f(»ur days before he died, and
he never coniplainc<l of his thigh : it was very
wonderful he should not complain of it.
Kleanor Ewer s:nd nothing to the purpose.
liacon says, that he came in the latter end
of May, 1726, and Thorn |>son and he were in
the pump-ward; that Thompson remained
there three weeks, and was carried from
thence into the Stronc^ Room ; that he has
seen twenty rats there at a time ; when he had
been there ten days he came back, and staid
in the Pump-ward two days and tlicn return-
ed ; that he had no bod, or hut a liltle piece of
one. He says, thnt Thompson complained of
the severe usasre, and that it would be the oc-
casion of his death : but not of the sore. He
says, the room was made on purpose to punish
|ienpl<> for great crimes ag:iinst the government,
and Thom(Hion told him, that it would be the
occasion of his death.
PuFcbace tays, that he saw him removed,
and said he walked there ; that he visited him
▼ery fi'equeutly, and the room was not washed
all the time he was there a prisoner ; that
there was no complaint of his sore, but of his
usage ; he says, that it was wet, and the raia
came in at top,
Wilson says, Thompson was in the Pomp-
ward ; that he was very hearty and merry,
and gave some instances of his mirth ; tliat ha
was put in the Strong Room, and was io a bad
coudition. He gives you an account of tba
floor ; that tliere was water there ; that MMne
came down from above, and some was maile by
Thompson, lie says, that he was locked
up 00 nights, but not on days ; ha went to
Acton to intreat him to remove him, and he
bid him hold his tongue; he told him he
should die if he was not put in another place ;
and tliereupoo he went to the nurse of the
sick-ward, but she refused his coming there.
He says, there was a tarpaulin put on the
top of the Strong Room about a year ago, and
before that the wet came in, and he belie?es
that this was the cause of his illness and death.
Phillips says, that Thompson was troubled
with a diabetes ; that he was io a misetable
condition ; that he was in the room ten days
before he died ; and that he bid upon the
ground all the time, and he was put there by
the prisoner's order ; and that he never saw
the room washed. He savs, that he might
have been put in a better pkur-e, for there was
room in the sick wani ; and he might have
been put in a room against his own ward, ibf
it was empty.
Gentlemen of the jury, you will consider
the state of this indictment ; and that there
are necessary to be taken notice of two things.
Tiie first is, that Thompson was put in u#
Strong Room cgainst his consent.
The next is, that the confinement there
was the occasion of his death.
The prisoner says, that he was very far
from putting him there, for he asked leave te
go; so that a charge is laid upon him who
never gave Thompson any offence, or used any
hard words to him ; therefore he oaooot besO
barliarous as represented.
There are eleven witnesses that he has call*
ed, who give an account of Thompson's having
the diabetes, that the ward was very uneasy
with him; and because he had done in the
ward, what they iisc-il not to have done there,
the}' took all his clothes away.
Christopher Gosling says, that Thompson
was offered by the prisoner to go into the sick
ward, and he refused, which confirnos what
the other witnesses say, (and then Acton bid
him go whitlier he would,) and he said htf
would go into the Strong Room ; and Actoa
said, if you go into such a room (the witoeff
naming the room) won't that be as well, tf
he went into the Strong Room on his owo de«
sire, Acton is not irnilty.
He says, that Thompson had a pillow ibJ
blanket, which is explained afterwards, that b0
Goukl lie upon it and turn.
561]
Jitr the Murdtr t^Jamtt Thompson.
A. D. 1729.
[568
Holnei 89V8, that Thompson was so tor-
■leated by the ward, that Thompsoa dettir-
cd him to ^o to Acton, to desire he rni^ht go
ioto tlie Strong; Room, and upou that Acton
gftve leare ; and says, that he was desired to
go to the sick ward ; and says, that he was
Mt contiried in the day-time, unless he was
boiled in by his fellow-prisoDers, that bad
fliftd the rnifue with him.
UEabeth Goslinf^; she pves an account
M her husband did ; that Thorn psuo owned
bfv firiendly the prisoner had t)een to him^ and
IkU it was so far from being* looked on as a
piaithmctity that it was a matter of favour
fheoght by Thompson to \te there.
Brown says, that he talked with Thompson,
ud Thompson said, Goil bless Acton, he hail
Mfcd bb life, for if he bad stayed any longfer
m the ward, be shouid have died ; and says,
there was a bed there.
Barton ; she beard the captain say, that he
Hktd leave to go into the Strong Room, b«;ing
Mwt and easy to be there ; and that he bad ra-
ther be there, because iie was always at ease.
Bondler says, that the ward was uneasy ;
ipon which Thompmn made interest to go
line, and took his bed and bedding, and asked
kave of Acton to go.
Direnish says, that the people of the wa^d
CMDcibrbim, and he saw him carried quite
thraofdi. He goes into the Strong Room,
■y awed Thorn |)Son, how he came to be there ;
ib4 he owned, by the civility of Acton that he
VH there. He says, that Thomi>son bad a
M,and that be went out and in when be
ikiHd.
Mnson says, that Thomimnn said, that he
Aid[ed God that Acton was so good to let him
Kfli6re.
There were two other witnesses, who spoke
to hri asking leave.
(jeutlemen, now yon will confider how the
taoetidenres tally, and what injury there was
done to Thompson.
For the king, they say, that he was put
tbfre without, and n«^inst his consent ; an<l
^tbe prisoner, eleven witnesKts Kay, it was
^tb bis consent. If you should he oV an opi-
Bino that it was wtihout his consent, tlicn itde-
ttrrei another consideration ; hut if you sdiould
kof an opinion that it w.is with his consent,
to there must he an end of tliis.
loibe next place, you will coiisidcr in rela-
tion to the distemper. As to the dialu'tcH, some
biveuid on one side, that tlicy looked ufMMi
it to he mortal, and that he never complained.
h it very observable, that he never should
■Bphiin.
lathe next place, they tell you, h6w he
CMiKht it, by lying upon tlie bare boards. Nome
tf the witnesses for the king say, he had only a
*l of a bcti ; ami eleven uitnesses for the pri-
^vny, he bail a l»e<l ; and if he had, he
^ BOI lie on the ground, ami could not have
^diblenper from lying tliere; it was im-
The third part if, whether he was a
VOL XVll.
soner in the Strong Room? You hare beard,
the witnessscs for the king all agreed that he
went out on days, though be was locked np
on nights.
The witnesses for the prisoner all agree, he
went out on days, and be was not lodged up
on nights.
As to bis goinjr to the sick ward, the wit-
nesses say, that Acton ordered it, and be lo-
fused to go.
If this place gave him the distemper of
which he died, and if be went withoot bia con-
sent, you will find the prisoner guilty ; but if
he went out and in when lie wouhl, in conse-
quence, he was not con Uneil there; there is
no reason to find him guilty.
Wlien be asked leave to go to the Slrong
Room, the prisoner gave it in a vAy boioaiiia
manner, and gpave him bia choice, to ge
there, or into the sick %vard«
Upon the whole I must leare it to you.
The Jury agreed upon their Verdict imme-
diately, without going out of court.
C/. of Arr, Gentlemen, are you all agreed
in your verdict ?
Omnen, Yee.
C7. of Arr. Who shall Aiy for you ?
Omnes, Foreman.
CV. of Arr, William Acton, hold op thv
hand. ' (Which he did.) L6ok u|)on the pn-
soner, how sny you ; Is he Guilty of Uie fe-
lony and murder whereof he stands indicted,
or Not Guilty ? — Tortinan, Not Guilty. ,
Mr. Strange. The prisoner, my lord, has
been very much fatigued, and desires, upou
paying his fees, he may be now discharged.
Acton. 31 y lord, I desire you will discharge
me now.
Mr. Baron Carter. 1 can't comply with
your request.
Mr. Strange. Mr. Paxton, speak to the
judge. [Upon which Mr. Faxlon went out of
court.]
Mr. Strange, Mr. O^^lethorpe, I desire you
will interfere, and speak to the judge, and that
you'll give your opinion. Pray speak, praj
tell whether you consent.
Mr. Oglethorpe, Were I prosecutor, 1 should
desire the prisoner might be released ; not that
I ihiok him innocent, but that every English-
uian, let him be never so unjastly acquiUed,
hath, by the Habeas Corpus act, on his ac*
qniital, a right to be discliarged ; nor can any
subornation of perjury, or any management of
a jury, prevent it, for they are cognizable at
anotlicr time.
[There being then a great noi?c in the Court,
interrupted his spenkiug for sonio time, and
OS s<»on as it reused, he went on Hgnin.]
A<9 I said lu't'ore, I nni not the prosecutor : if
I wprc, I knew uhat I should have done. The
Attorney General was ordcrcit to prosecute by
the crown : aurl it is he, or his representative,
that should anfiwer this question, and not I ;
pri- I and since I am speaking, 1 desire to be in-
I SO
MS] 3 GEORGE II.
dQlg^ a word more, Ibat 1 may telltba reaaoo
of my coming here.
HaTiDff bail tlie honour of beio^ one of those
gfetitlrmen who were appointed to eiH|uire into
aevprul matter*, aome of whirh have been this
day under your couiiideration ; not koowinsf,
therc'lure, what questioDS mii^ht arise, for the
-clearin^r up of which I might be neceaaary, 1
-Iboucrht it incumbeat on me to attend.
1 have bad nothiopf to do in eoiiductini^f the
Iiroaecutinn here, which baa appeared evident-
y ; therefore I can't imaifine why any appli-
cation should be maile to me.
DoMiNUs RExvenuf Acton.
Michaelmas Term. 3 Geo. 2.*
Tbe Defendant was deputy -kee}>er of the
llantbalseif- prison ; and upon tbe A<ldresa of
the House of Commons, was prosecuted for
several murders, supposed to have been com-
mitted by him on prisoners in his custody. He
was tried on four several indictments, whereon
* Sir John Stran^^e's Re^torts, vol. 2, p.
851.
Proceedings relative to the
[564
the only question was, Whether a pbice withio
tbe prison, called tbe Stronsf Room, waaa pro-
per place to confme disorderly prisooers inf
And tiie jury upon all the four trials acquitted
him, to tlie satisfaction of almost every body;
Hud in consequence of these acquittals he wu
discbartred. Presently after he was at liberty^
a sini;ii' justice of tbe peace, upon iufornaatiaa
of a filtb iKfi-son's havings been put imo the
same Strong Room, and dying wiibio a 3 car
after, tboug[bt tit to commit tbe defendant agaia
for murder; and npon a Halieas Corpus^
Strange pro Def. moved he might lie admiitetf
to bail, on protlucing copies of the ioforiHatioot,
and affidavits of the former trials, and of tba
identical nature of tbe oilences ; but tbe Court
refused to look into tbe informations, though
they ware pressed with tbe lord Mohnn's Case,
Salk, 124, where they looked into tbe deposi-
tions taken by tbe coroner, upon a motion to
i»ail : And, in tbe present case, they remanded
tbe defendant; who lay in prison till tbe next
assizes ; when tbe grand jury did bim tba
justice to return tbe bUI Ignoramus, and he was
discharged.
486. Several Proceedings relating to the bailing Mr. BAMBaiDGE,
both at the King's-Bench, and at the Sessions-House, in the
Old-Bailey, previous to his Trial for Felony :* 3 George II.
A.r>. 1729.
Al ike King*S'Bcnch, June 7, 1729.
1 HIS morning Mr. Bambridi^e was brought
by Habeas Corpus from Newj^^ate to the Court
or king's-bench. Tbe Habeas Corpus, and
tbe reiuru, which contained the several mat-
ters, wherewith he was charged, were read,
▼iz. 1. A Comoiitiueiit by tbe honourable
House of Commons, for many Barbarities,
Cruelties, and Crimes, in tbe execution of the
office of Warden of the Fleet. l>. An Indict-
ment for the Murder of Mr. Castell. 3. A
Charge of Felony for stealing goods.
Tbe prisoner's counsel moved tbe Court, that
he might be admitted to bail; for that as to tbe
first of tbe said commitments it was ended by
tbe expiration of the sessions of parliament ; as
to tbe second, tbe prisouer upon a fair trial,
liud been acquitte<l ; and as to the third, it was
a charge brought in U|»on tbe prisoner, on bis
being acquitted of tbe murder, and no bill of in-
dictment either tbund, or offered to the grand-
jury, though they coaiinued sitting till tuc day
after tbe trial ; and more especially, was it rea-
sonable to admit bim to bail, fur that by a late
act of pnriiament, he is oblige«l, on the pains
aud penalties of felony, forthwith to make out
true and perfect llsu of all the prisoners in tbe
fleet, till June 14, and to qfive up all secoritirt,
imma
i* Ste the prroadiog and foUowing Cates.
&c. which it was impossible fo;* bim to do,
without having bis liberty to go to tbe Fleet,
to ius|)ect tbe boiiks, and examine the officera
there ; and eight persons being ready to be*
come his sureiies, whereof notice was given ;
therefore, it was hoped tbe Court would admit
him to bail. Tbe king's counsel alledged that
the crime which tbe prisoner stood charged
with, on oath, was felony, without benefit of
clergy : that, as to what was said of the pri-
soner's being liable to the pains of death, in
case be refuses or neglects forthwith to make
out the said lists, 6cc. the said word ' Ibrtbwitb,'
in this case, imports a conrenient time, or as
soon as is reasonable ; and therefore, on behalf
of tbe king, they bo|)ed he should not be ad-
mitted to bail. The Court were of opiui<Mi, thaS
as this case is circumstanced, there weie noC
sufficient reasons to admit tbe priaoDer to baily
the crime he is charged with being capi;al ;
and one of the king's evidence being out of tb*
way, tbe last day of the sessions at tlie Old
Bailey, the bill against him was not preferredy
and tne Court there iiaving onlered tbe pri*
souer's detainer till next sebsions. Tlie Court
al(<o declared their opinion, that in case the pri-
soner, to tbe utmost of his power, complied witii
the act of parliament, in delivering such Iiil0»
&c. he would be no way liable to tba peoahM
thereof; ill tha «ud b« vra« reuMiided !• Mtvr
gstt.
Hailing Thomas Bambritige.
[566
IS uf 0>cr ADil Terminer, and
R'ridtrcry, held Bt JuXiRa-hall. ai ilii^ Old
M(T( ou U>a Dili day of Jutj, 1799, lielore
Mr Uotwil Bayli*, kniglit, lord -mayor, and
»ly'« ju.i
>r for the <
Tk* Solicitor for the Crown not beiii^ ready
I* WW Thomaa BninhndgF. wlio sUitd indict^
teUniy ; ibo kin^'N L-ounsel did not alttod
MllwlHh of Jul;, the UtdayoltheKiriuinB;
«W» l>#nt ctiirl- baron I'en^'elly. briun ill, vitta
•0«f tomi ; and Mr. Justice R«ynoldi Wing
lUaed to go the circuit ; there were ouly on
ItoWDch, iJr Williaiu Tliompion the recorder,
nd Ur. KtMJeaot Raby, (he deputy recorder.
WIirM Mr. Bambriilge was hrougbt from
Ntwgvic 10 ibe Old Bailoy, be petitioned Uie
Cowrl, ihal he niigbt be either tritni, bailed, or
di»cbar|[ed ; and that in the mean time be
ttigtii, ni.dcrlhecusloily ol'ihekeeiierorNew-
fitc, bo (icnnitled to go lo the judges chatnbers,
loiMpecI ibc bad books, an<l commitments, to
*aiU« blni to [terlect thi: lisli of all bis jiri-
F\itn, itliich the prcteu I warden had demand-
iili hy n late act of |)arliament he
■■'• dpliver, ou the p«ins of felony
111 uf «lergy; and the juilges going
j~on Monday nexl, liia iieiilion set
imii, iiiii It might be too lale for him, alter
A> rait iif iho aeuiiins, to lna|iect the (aid
kwki. 1'he Court were iileaaed to record the
MliDO, and ta graiil the lirsl part of it, tic.
Ibube abiiiild either be tried, hailed, nr dig-
Aiapi\ ; and a* In the other part uf li
iMjiltciareii that hecoutd not incur
HbiiD Ibe <aitl act, if he did the ulinovt in
bfWirtn perfect the sai<l li«U,— Aud oe«
^.IJoly 10,) Mr. fininbridire, who had peli-
*mi ltii> Court IV he trieil, bailed, or din-
•Hpdi WM iodioled, Kigether with Jamn
"-■-■-, and Willium Pindar, (bis arcomphcea)
' Jdg open the door, and t'eJoniously
•"'r.ri;: iliL ^uodji of AlrB. Ucrklcy, a |>risoner
|"i!i' 1 l.'i ; when the grand-Jury fouud the
t>i| Ji;jiii»i ihciii all; Mherrupou Douglaa and
hdflar «tiuuiKled.
And on 13th July 173P, lieing the last day
(Itlw Kaaiuna,
~ ■ Bambridge (being before arraigned)
ulit to tlie liHi', to he Irivd tor Ibe
-Mrcofhe alnod indicted ; when lir
iTbompaou (poke ai follows :
I l'A«im^Mi». As I have the honour
•toflbcHoiiBeofCi
I proMCUlion waa ordered by Addrran
_m il«UB« of C«nimoni, it may be oh-
: !>/ iIm priMurr, thai 1 am both d pro-
''■'idgt. 1 have do perianal objection
fliiH jaD, and 1 beg I may iiolbv uniler-
■^"' — ' niraonal ol.jeition to you;
uelonKing to the llou»e ot
') bat* uuy tbiog lu du with it.
tyuK . Uf. Atloruey, jnu
h W^^.
•ee the priMoer (hinka me not a pro|i«r judge
10 try bim.
Jit. Gen. I apprthend it U not a l^^l ob-
jection ; 1 belieie it has freqiienlly happened,
that membera haieaal asjudges, uhme proae-
culions have beeu ordered by the Houae of
Commona.
Sir Wiiliaifi Tliompum. Me mny not think me
diTCBted of partiality ; it may beihongliliD me
a remote objeclinn, bnt I would avoid lying
under any imputation of partiality.
All. Gen. 1 dun'l sav it is not a legal olgeo-
lion ; a« the prisoner does insist upon ii, it ia
not right in me to instnuiKm your trying him;
but if you do notthinkpruperio try him.tbrtbe
sake of the prniecQtion,-and ll>e solemnity of
it, I hope ihe trial will go off tilt a judge is
here : hut 1 am told there is danger l1isi some
of the wimeases may be gntie out nf llie way ;
and as witnesses are the most nitlurial in alt
iriaU, i should be glad of its coming on as soon
as possible-
Sir William Thompion. I Witl tell voa biHr
that matter happens ; there is not a ijay next
week, that my iorit-maynr is not engayied ia
business; suppose itsbouldbe put olT till Mon-
day se'ii-night, some of Ihe Juilges may ba
oome home from their circuits on IjatnitUy
uighl ; tlie sessions ahill be adjourned nii pur-
pose ; there shall lie all the care in the world ta
support the prosecution. As this mailer doe*
liappen,Bndthe prlaoner still iniiisis iifiou it, let
it be Wednestiiy nr Monday se'n-night.
All. Gen. I ixtlieve Monday will be the pro-
perest day ; lord chief-justice l^yre, nuil baron
Carter, may he in town then.
8ir IVilluan Thmnptott. He sees ibc incon-
venience; if he will wave the objecilnn, I am
ready to try him, and be shall have all the in-
dulgence tne law will alluw; I du it not l«
wave the fatigue ; and as for Mr. Keijeanl
Raby, be is not well, he baa bad an ill stale of
liealib for some lime, anil is not able lo try him.
Atl. Gen. If it goes off to Monday seren.
iiighl.itmsyhepDlofTtill uextsessiiina; there-
fore I should ihmk it belter for tbe jiriMiner to
be tried now : I don't desire him ; it sliull b«
voluntary in him.
Bambridge. I insist upon ibe objeclinn.
Alt. Gtn. Pray lei it be on Monday leven-
nik'hl.
Kir iriUiom TAon^ison. It i« tbe Aliorney's
denire, thoi it may be ailjoiiroed till Monday
seren- night,
Bumhridgt. The trial I went under U>t ses-
sions, Ihr (he murd,'r id Mr. CaMell, met wiih
false rcpresenuiiioiis in the papers; iherelore,
rather ihno run any baaard ot n iinsreprcsenu-
lion, 1 ileEire it may he adjounied to the tim<
Mr. Ailnmey meutious.
Sir Witlium Thompvm. VihttX was loierled in
Ihe paiwr* I have nuihing tii wy In.
Buiiilridgt. If thiugs wer« iiuii represented
then, they may ajjaio \ and I have itoflVred so
much in my chnracter under sui'h misreprc^rn-
intiona, that i ought to be coiitious how 1 coa-
duvt myuir.
867]
3 GEORGE U.
itigs relating to the
[5GB
TbeD the Covrt ifis adjoained to Monday
teveo-oiglit.
ProclamatioD waa madR for informatioD.
€/. rf Arr, Set up Thomas Baiuhridgfe.
(Which was accord'mij^ly doue, and the indict-
ment raad in £n(;lish.)
Sir William Thcmpton. This matter was
put off till to-da^ (the prisoner having* tboueht
fit to object a^inst me), in expectation tnat
■ome of the judges woald come to town.
My Lord Mayor has sent to those in town,
mnd they sent word, that it wonld not be conve-
nient for them, beiugf fatigued with the circuit.
Alt, Gen, Mr. Serjeant Cheshire and my «eif
•re ready, and the king's witnesses nn • rencl^f .
' Sir Wiliiam Thoinpum, I have had the objec-
tion in my mind ; and the more I consider of if,
the more 1 thi!ik it will lie very improper for me
to try him. I know no instance, no parallel. —
There was an act passed last sessions of psHia-
ment, to which I was a party ; the prosecuiiou
was ordered by Address from the House of
Commons, to \^ hich I was a party ; and it does
remain a scruple %^itli me, that it does not be-
come me to try this man. — ^The trial must he
put off till next sessions.
Lord Majfor, The jud^^ sent word, tliat
they were so fatigueil with the assizes, that
their health would not permit them to attend.
Att, Gen. I have been here twice : next
sessions is the 27th of Au»:ust ; I must be out
of town, and cannot be able to attend the trial.
Serj. Cheshire. I shall be 150 miles out of
town at that time.
Sir William Thompson. The sessions \ou
don't usually attend ; 1 wish it was otherwise :
if you can tell me of any case where a judge
acted as prosecutor and judj^e, 1 will try him.
Att, Gen. I can't recollect any precedent ;
but the Court of King's- bench grants informa-
tions, and tries the cause after.
Sir William Thowpson. After the Court of
King's-bench grants informations, they hear
both parties. Whoevrr reads the act passed
last sessions, if I had tried hiui, would say I
was not impartial.
Att, Gen. If it is a scruple the prisoner
makes, he cannot be discharged.
Sir WilliaiH Thiwipson. The trial luust go
over ; it must take its fate. Mr. Allan , take
care of the prisoner.
At the Old Bailey, Aug. 27, 1729.
Dns. Rex ver. Bambrioge.
Mr. Conningsby attended on behalf of the
crown, and made a motion te put off the trial
(»f Thomas Bamhridge till next 8e«>sions ; but
the Court did not think fit to enter into the ar-
gument then, and deferred it till the 89th of the
same instant.
August 29.
Mr. Conningsby. 1 am of eonnsel for the
king, my lord J have aa bumble motion to
make to the Court, that the trial of Mr. Barn-
bridge may be put off till the next sessions ;
and when I ask this, it will be necessary to
assign some rea^ion : the last time 1 made the
motion to the Court, your lordship was plcasei
to determine, that the prisoner was not m tbt
meaning of the Habeas Corpus Act, as he waved
being tried hini!it»lf ; and therefore it is discre-
tionary in the Ojurt what tbay will do id this
matter, as the trial was before put off by tbo
prisoner's concurrence. My lord, the king's
counsel being out of town, or upon the circuits^
is one reason ; but I don't barely insist opoa
that ; ffir 1 have an affidavit, that a malmal
fiilnfss fur the king is absent, and can't be
found; that he has absconded for debt; but
that we shall be able to have him by next ses-
sions, though not now ; I submit it upon that.
Then the afRtlavit was read, which was to
the following effect:
" Nicholas Comer maketh oath, That he
had souj;ht afker Gifford Lane, formerly derk
to Mr. Gybbon, late deputy wanlen of the
Fleet, to ser%e him with a snbpcena ; but oooM
not find him out, because he has abscomled for
debt; but believes he shiHl find him by the
next ensuing sessions ; and thst it was not safe
to proceed to trial without his testimoDjr, &c."
Mr. Conningsby. I ho|)e, upon this, my
lord, the trial will be put otf.
Mr. Just. Fivbyn. While Mr. Wynn is
speaking, 1 desire 1 may look over the affi-
davit.
Mr. Wynn (Counsel for the Prisoner). My
loni, I hope the reason given is uot sufficient
to put ojf the trial : I will not mention now the
long time that he has been kept in prison, it is
so frcKh in memory.
As to the absence of the king's counsel, there
is no occasion for them, as that learned gentle-
man is present ; and 1 humbly apprehend, that
can be no tbundation to put the trial off*.
The next argument is founded ufion die affi-
davit of Nicholas Comer, That he had not been
able to find Lane ; and that Lane was a ma-
terial witness for the king: what foundation ho
had to believe Lane a material witness does not
appear ; and it is very easy to seek for a man
where he is not to be found. The other day,
my lord, there was nothing then pretended but
the first part of the motion ; aud Mr. Paxton
himself will own, that he could assign no other
reason than the absence of the king's counsel;
and, I picsunie, as your lordship would not
allow that as a sutficient reason then, I hope
you will not now. At the latter end of a ses-
sions no affidavit, the}' themselves are conscionsy
can have any weight.
They supiiosed that your lordship wonki
hardly eiitcr mto it now, and, for that reason,
have very artfully spun it out : I called npoa
them then to give a reason for putting the trial
off. IV hy was there not a proper afiplicalioo
yesterday P The affidavit would have been fiM,
and the prisoner would have had a proper op-
portmiity to give evidence as to the ckaFMler
of Comer; andif any thingistobeprcniaiMit
560] BtuUng Thomaa BamMdge.
yonrloidriiip will pretume it in ikfour of the
A. D. 17S9.
[570
r will notukc op any more of your iord-
Aip% tioia ; bsl humbly iimst, that yoar lord-
ifen will proceed upon th^ trial, or admit him
Mr. ConningMby. The learned g^tleman,
■viwi, innnysles, that «e eearcbed tor Lane
MM be was not to be found : the affida? it sets
ftil^ That Comer learched at hia place of
Mie^aiid at other placee, where it wan thought
kna likely to be. We do take u|Hni us to
2^ ba is a material witnets: if we swear
riy^ that lies upon ut to answer ; and, I ap-
ynfaeid, the crown would be no more surprised
An the prisoner.
■BmAndge. As to Lane^s being a material
ailisisi^ if yon look upon the indictment, you'll
■M sea him upon the oack of it.
Mr. P&rfoff. That's not to the purpose;
hi u« seldom pot the .most material evidence
SB he back of the indictment.
Bmkridge, 1 beg leave, m^ lord, to men-
fa sas circamstance, which is notorious, and
Mv publicly talked of: there was one gen-
leasB of tiie grand jury, who was very soli-
dhas to the rest of h\% brethren to find this
hj^haalwd violent hands upon himself for the
i^^vy dofie to me«
Mr. Just. Probifft, That is not to the purpose.
BaAridge. He has not sworn to Lane*s
(faeeaf abode.
Mr. Paxton. There is one remarkable cir-
cowisnce, that the Court was adjourned for
Kfwsldays, that the prisoner might have a
hpi trial, audit went off upon the prisoner's
Btmkridge. I am surprised Mr. Paxton
1 say that ; 1 did not speak one word that
diy. ] have in writing what was said, which
tmis one ready to swear to. [Which he
nadorer.]
Mr. Just. Probyn. That relates to the prayer
«f the Habeas Corpus Act.
When people are in custody a considerable
time, without some particular reason, they
disiild be discharged.
One of the reasons always admitU^d, is tho
«iBt of evidence for the prosecutor : if endea-
tours have been used, and they cannot be had,
hat always is a sufficient reason. As to the
iflidavit, it is not so strong as usually is made
apsQ such occasions: it says, that he was con-
essad for the prosecutor ; but it don't appear
bow he was concerned. He says, that he had
jmda enquiry at Mr. Gybboiis'H house, but
ion'tsay that he ever lodged there; but goes
St and savs, that he enquired at several other
|hees wbere it was likely to find him ; but
wt say he lodged at those places. Why
vsbH tou eonsent that the prisoner should be
■dhdr
Mr. Conningshy, I don't know what service
ksin be to him.
Mr. n^nn (afterwards Seijeant). I am sur-
1^^ tnat any thing should be mentioned
^telhs appeily which is a private cause.
Kir. Conningtbjf, I mentioned noihuig of
the appeal now.
Mr. IKysn. Yon did the other day.
Mr. Baron Comym. As, on the one band^
care should be taken that the prosecution should
be so carried on, that the perscm guilty should
be punished ; so, on the other hand, it should
be carried on with such speed, that no person
should be longer confined than necessary, ft
does appear, by the concessions on all hands,
that tne prisoner has continued in prison ever
since May last: though, by the waver of not
being tried, be is not intitled to his discharge,
yet he ought to be considered as to the length
of time he has continued in prison ; unless yoa
can show any disadvantage to the crown, if he
is admitted to bail. If it secures the liberty of
the subject, on the one hand, we shall take care
on the other, that the bail shall be so suflicient,
tliat he may be amenable to juslice.
Mr. Paxton, The trial was put off upon Mr.
Bambrid;re's own motion.
Mr. Justice Probyn, He ought to be ad-
mitted to hail. Mr. Baml»ridge, have you bail
ready?
Bambridge. 1 can't say I have this instant ;
but if it is your lordship's pleasure to order
bail, upon giving notice to the solicitor for the
crown, ril get them ready.
Mr. Just. Probyn, Give the names of the
bail as soon as conveniently you can ; for it
should be done in court.
Mr. IVi/nn, Can you undertake to get them
ready in two or three hours ?
Bambridge. 1 have two or three ready in
court now.
Mr. IVynn.
be bound in P
BIr. Paxton.
justify in a particular sum.
Mr. Just. Prohtfn. lie shall enter into a
recognizance himself of 1^,000/. and the bail
1,000/. a- piece.
BIr. Paxton. I sbotiM h.iTc an opportunity
to enquire into their circiimstaiices.
Mr. WiUiams, Yon know me.
Mr. Paxton. I know you to be a tradesman
in Long-acre; but donH know what you are
worth.
Mr. Just. Probyn. You that are here now
may justify : you say you know one of them,
only want to be satisfied as to his circum-
stances.
Mr. Wm. Beatniff (conchmaker in High-
Holborn). 1 am ready, my lord, to justify.
Mr. Just. Probyn. Is he sworn ?
Mr. Tanner. Ves, my lord.
Mr. Just. Probyn. Mr. Bentniff, are you
worth 1,000/. when all vour debts are paid?
Beatniff. I am, my lord.
Blr. .lust. Protn/n. Is Williams sWorn ?
Mr. Tanner. He is.
Williamt. I cannot swear to 1,000/. ; but
1 will swear to 500/.
Mr. Just. Probyn. Are you worth 500/.
when nil your debts are |>aid 1*
Willianis, I ami my lord.
What sum, my lord, shall they
I desire, my lord, they may
071] S GEORGE IL
Bambridge. There is one of the Serjeants of
the compter has oflered to be the other.
Mr. Justice Probi/n, Let him be sworn. —
Titus Parker, are you a house-keeper ?
Parker, Yes.
Mr. Just Frohyn, Are you worth five han>
dred pounds, when all your debts are paid ?
Parker, 1 am, with my pUce.
Mr. Just. Probyn, I have nothings to say
bow you make it up ; but 1 ask you» whether
you are worth 500/., over and above what is
necessary to pay your debts?
Parker, I really belii>ve I am.
Mr. Just. Probyn, That is not enough for
you to say.
Upon which he would not swear otherwise,
and withdrew ; and Mr. BambriJjj^Q was di-
rected to get anotlier.
Saturday f August SO; 1729.
The Calendar being called over, Mr. Bam-
Widge was broutfht to the bar.
Bambridge, The person that 1 did propose
for the third man, i cannot have while the
Court is sitting, fur he is out of town.
Sen. Raby, Then you can't comply with
the wnole.
Bambridge, I canH now ; therefore I de-
sire I may be referred to the lord mayor to take
the bail.
'blr, Harbing, The third person was just now
in town; I saw him with an agent of Mr.
Bambridge at Fleet-ditch.
Bambridge, My lord, Harbing is one in the
cons[)iracy : I shall have yon, and Comer tuo,
by-and-bye.
Harbing, That audacious front of your's
will do vou no service.
Serj. Raby, You say you can't be able now
to comply ; you can't give security now ; and
you desire it may be referred : Whoever taki's
that authority upon them, will do it by Ihe
order of the Court. Let it be referred to the
Lord Mayor, and any two of the alJennen
upon the rota. When do you propose to give
in bail ?
Bambridge, I propose on Tuesday morning.
Serj. Raby, Let it he W^ednesday, and give {
three days notice : it will be better fur you ; for
the Solicitor fur the crown may say that he had
not sufficient notice, and that may delay you.
Lord Mayor, You may attend me on
Wednesday morning at ten o'clock. Tuke care
to give Mr. Paxton notice.
On September 9th, he was bailed before the
Lord Mayor and Court of Aldermen, at Guild-
hull, for the felony of which he stood indicted ;
having given sufiicient sureties for his appear-
ance at the next sessions at the Old • Bailey ;
though he was continued a prisoner in New-
Cfnte, boitig charged on an appeal for the
murder of Mr. Cabtcll.
Dns. Rex vcrv.is Bambridge, At the Old Bailey,
Oct. 20, 1?29.
The said Thomas Bambridge being brought
Proceedings relating to the
[671
to the bar (the king's counsel not being then in
Court), proclamation was made for information,
CI, of Arr, Thou the prisoner at the bar,
these men that thou shalt hear called, and per^
sonally appear, are to pass between our so.
vereign lord the king and thee, npon the trial
of thy life and death ; therefore, if you ckal-
lenge them, or any of them, your tiuM to ^Mak
is as they come to the book lo be awoni^
before they are sworn. [Then part of the paa-
nel was called over, as follows :]
CI, of Arr, Robert Johnson.
Johnson. Here.
Bambridge: I object to him. I mm tar-
prised he should be summoned : He was a pri-
soner in the Fleet, and was cleared by the kte
Act of Insidvency ; and so are half of the per-
sons that are now summoned.
Officer, I took the best care I could.
Bambridge. These ought not to have been
upon the pannel : I am ready to be tried by
anV twelve honest and indifferent men.
Ij.C. J, Raymond, 1 don't know bow this
matter is ; if you have any just cause, yoa
may challenge any of them.
CI, of Arr, John Lewis. (Who ansirered,
and was sworn.)
Bambridge, Halfof them were prisoiien.
Wir, Mattheus. Have you any other pan-
nel ? — Officer. There is another pannel.
CI, of Arr. William lierry (not here).
CI. of Arr. John Fowler (answered^ and was
sworn.)
CI. of Arr, Richard Evans.
Richard Evans. Mere.
CI. of Arr, Look upon the prisoner.
Mr. Kettlcby, Let the prisoner look npon
him, to see if he knows him.
Then the King's Counsel came into Court.
Serj. Clieshire, 3Iy lord, there is a witness «
that IS to go throu;rh the whole cause, one
Turner, who is very ill ; and we shall have an
affidavit presently, that be can't without peril
of his life, come out. He was here on Friday «
and this is the act of God : Three or four timetf
the king's counsel have attended, and hoped
this would have been the last. It is our duty to
acquaint your lordship, that he goes ihrougb
the u hole cause : W^e are very sorry it has so
happened ; but we cannot try it, unless we aro
to try the cause without this witness.
Alt. Gen. It is impossible for us to go oa
without this witness ; this accident is what
we did not meet withal till the Court was
sitting; there is a messenger seut, and
an a|>othecarY, to desire him, if possible,'
to come in any manner, in a chair, or other-
wise ; if not, we shall lay before your lord*
ships, by affidavit, the condition he is in, wheB
(he apothecary comes. This witness is tbs
most material in the cause; it is impossiUs
to charge the prisoner, or try the cause witboot
him. The witness was here on Friday, wuk
there can be no inconvenience to the pri^
soner, f«)r that in re^anl to this indictment he
is bailed ; he is not in the same case where kt
J] Sailing Thomas Bamhridge. A. D. 17^. [574
lid be kcpl io custody ; but if that was the may be read, (which was accordingly done,)
», it is • tfufficient cause to put off the trial, and is to the following effect :
iKwintf' he was not upon bail. I hafe at- .. i„.^_ r* . ^ », -r^ i
..re done with this aUend.nce. *" '^^'Zl' fa, i ' " ir " ^ «»«""y "wke
f ' I »««m«m,l I .-.n't k>v .nv thinff to "*'"» *■"" •"' '»•»»«"; •"•J Jamw Current
B™.*.j./,.. I djd «,t be.r one word that SXHe tT'^nz^'^tb^^o.S f^^,
LC J-! Tbcr£;« alleged, tbat . material T*'''''' '""'IT '"'r ""jf^ H"*! •^T"^'"*' ^
«M;.that gL .hrou«h^.b'e whole cause. iT„'^!:i'^w^i',l«J?„^!l„"n "'7k '.!?"'
ZoTwith an V aafely to b« life attend. Tlier^ Lilhnnton now lies daogerousl v ill ; that the
<c J •» ' " •. . iT^ i. irl wound w SIX incbea lonjr, aud three deep, and
"'f.-.r-J ?!L*'«j' i.r 'r «i'll.^ •« "^"""o' »>• b«»igbt «ut without mSufert
B of till It does, and thev say it cannot be ^ ^j. ^^ ,;f » "" ™
Jtl'tTiir'^^J^rife'tri;?.™ » Coodac^s ; he swears that be ba. been to
riy bailed. 1 hmB you bear me. for 1 am ^j^.^ j^,,„ ^.^^^^^ ,„j ^^^^ ^^ ,j,,,^j ^.^ ^ ~
b *!. -J M» 1-. 1 ¥ I. k .. . ^.. »u:- lentl y ill of a plenretic fever, and he cannot be
irit^nd'ijeSgi^sSiri^a;'-" jrl'""*°* ••" '"'•^"* ^•""""^ "^ *»'■
tmtridge. I don't know bat this witness fe'U'y .^''j i'"!""' ""* V A ".•-ii"'*
.•Kof the people maintained in the Fleet at T""^/?.^it" 7T*T t"** fl''^"K*^'""l£•
■riw.8e..Tba. been put off already.*- ?"":. ^. J^t" ♦TIT"*' """ "•*"•*:
sS: &z sit tS"'' ' •"- lii^t.r/;;'i*'n»e ^prSrs
1S^«/h':rnot''ouXu 'it wa. not v;itho„t the benefit of .he.> testi^
M in Jnly last, we bad all our witnesses tboD J";„"Si.»"* '*^ on Friday, though he wa.
at. Strange. An honourable gentleman ^^/. Gen. We that are counsel for the king,
OKietbe objection, then upon the bench. cannot oblige the attendance^ of witnesses i we
Au. Gen. I must observe that the prisoner cannot keep them in health ; 1 should have
■Med upon it himself. been very glad to have went on with the trial ;
hmkridge. 1 am very sorry, so weak a what has been one of the means of putting it
ifeniisrero as this is made use of to put it off. off, was the prisoner's insisting upon an objec-
LC.J. Have a little patience till the affi- tion, that was made by an honourable person,
McomeN,! cannotsay any thing to it till then, then upon the bench. The affidavit is so full,
Babridce. I have had a great deal of un- that I need not trouble your lordship with anj
cooHmm sufferings in this cause. observations iipon it. The course of all courts
L C. J. That is nothing to me, I can't say is upon such an affidavit to put off the cause,
Mjr thing to it ; 1 am here only to try tlie and it is not safe to go to trial without this wit-
iUK, ness. By my brief we cannot safely proceed,
Bambrid'if, I have brought a gentleman, for the prisoner was committed upon the af*
Mr. Holder, one hundred miles, and this trial fiduvit of Turner.
siB^ put off from time to time, the expcoce Sol. Gen. I apprehend, that what we apply
I to great, that it is enough to ruin any man. for, is so reasonable it will begrauted.
L C.J, You must siay till the affidavit L. C. J. Thcaffidavit is sworn by three wit*
•m«s. nesses.
Shtj. Chethire. Tliis witness swears to the Mr. Kcttkhy. 1 sm counsel for the prisoner,
teling the goods. In cases of felony, counsel may he assigned for
Then Mr. Bamb. idge went from the bar, and ^^cT K^STe '" m^go't
lewurt wailing some time, Mr Paxton pro- ^i,^'j^,\ticby. I hope the trial nill not be put
seed an affidavit, which the partes swore to J^; ,[^^'^^^^^^^^ \^,J\s so small a matter to
' *""'*• object, to put off the trial ; they don^t lUfntimi
Ait. Gen. I believe you should bring the when they first came to the know Iinljr*. of ihig..
mnner to the bar. (Which was done ac- If they came to the kiiowled^je ol it so soon,
•rdiegly.) that the defendant miglit have had an op-
Serj. Cheshire. Now the affidavit is come, portunity to scud people to vkw the personit ill
Kreare three witnesses, though I mentioned too, then this allidavit is not HUliieieui.
•tone. Now it appears, from the evidence L. C. J. He was here on r nduy
* three persons, that there is another per- Mi\ Strange, U is not »ftidiii the aflidavi*,
■i, a prisoner in the -Fleet, that cannot come ; that he was ^sub;)a»uacd, he might atti:iid a* a
kksi had a violent fever, that fell into one of J hearer. r b
■tbiehs, and caused a dangerous wound to ! Att. dn. None of us knew it till jij-t !•"•
bwade, six iuciies in length uiid three in depth, j He don't lie io prison upou tbis j he m cfiCAs***
itt; G$:i. My lord, we pray the affidavit ', upon the appca*-
1
575] 5 GEORGE II.
Mr. Kettkhif, Ho has an iron knocked off
onejesr, and ready to be uutupoii the other .~-
And ii' this holds him, lie may bp continued
for ever. 1 submit to 3'our lonlsfaip, that they
roust c^ive notice to put oti'the trial, if it is to l»e
put off; tliey don't say whether they knew of
this cause before, or not ; Mr. Attorney said,
he did not kootvof Liltiiifiifston'sbeiii^ ill.
Att, Gen. 1 knew Lillingston^s beiug^ a wit-
ness, bv my brief.
Mr. Kettlf.by, They should have set forth in
the affidavit, that they did not know of the illness
till this morning, and that they did not know it
before : If that had been the case, it had been
some excuse ; besides, the Jury has been
charged with the prisoner ; the attorney did
not come in so soon : he has made an objection
against the pannel, before the kinu^'s counsel
came in ; they said they were to have an in-
formation, of the disability of one witness.
Now there are two ill, without saying^ when
they first knew of their disability.
Oomer says, that he was employed under
Mr. Paxton, and he knows they arc material
witnesses. If Mr, Paxton hail given it upon
oath, that they were material witnesses, I
should have believed it; I don't know I'rom
whence Comer comes, 1 do not sec it in the in-
formation ; he says, tlmt he is acquninted with
them, therefore concludes, t)iey are material
witnesses. 1 must submit it, if they are ma-
terial witnesses or not ; it is an easy matter to
get three or four people, may be clerk's clerks,
to swear, that they arc material witnesses, who
I have no reason to believe had sufHciont rea-
sons to pfi'onnd their belief upon that they were
material witnesses ; should wc not have had
some information bcibre ? Perhaps the prisoner
mi|L;^ht have sent one to visit these pedple, who
might UsLW. swore, that the} were as able tn
come, as these say tli'^'y \^ ere unable ; ami I
humbly be*; leave to sav that the attidAvit is
not sutiicient. Desides, there is anothtn* rc'H>oo,
why it should not bo put oil', he is stirrtMiiiered
by his hail to take his trial, aud we do uol know
that they ^\til stand air^in.
Ait, inn. They must stand till they are dis-
charjjed Uy the Court.
?iJr. KcttUbi/, Tiicy have not so much as
given notice to stand aq;u'n, he has not had so
much as U!* (tpp(»rtki:iity of a*<kin(:^ ; I hope he
may be tried, or else the cnnsi-qiicu'jf^ must be,
that he nnt>; lie b\ tiil Deecsuhcr, and then
somcbod\ eNcuiav l:avc abroUen lo^.
Air. W'iinu, 1 cdu't |»ais over t!ii9 aflishvit,
without innkin^ one oi)serva:iiMi ; I sh:n) not
C.1II it an art'eeted delay, thon«;;h it I(M)\s ev-
ceedii'.LT lil<e i'. Ih*? aHidiivit last *:i'«sions was
not shewed the hrjjinniiijr «»f iho S'^sioiis, that
he mi;^!il liavo had nn opporltuMly lo aniwcrit,
but the la*<t tlay ol' tiic sessions ; 1 am sure
then it lookrd like iMi nlf.'f-tiMl do!ay. The af-
lidavit was ilirn not I uikul upon to hcsulK-
cient ; the olijecti.Mi then to >lr. C'oiriT was,
that he \m\s n(» sulicitor. Is a prvscni fiittitrient
io iKwcar to witnesses hiing nmtrri:iK thnl has
only served a subpceua? Mr. Paxtuu is the
Proceedings relating to ilie [576
only person that has appeared ai' a solicitor.
Another thing that is pretty extraordinary is,
that the bail is dischart^ed ; there may be no
render, hut the gaoler will hardly pari with hiin
without fresh bail.
1 should be glad to know, if the gaoler will
give lilierty tor him or no ; I wonUl not aiW
more to your lordship's trouble; but as thii
case is, tliere is no manner of reason to pat off
the trial.
Mr. Strange. I am counsel of the same side,
aud I must observe to your lordship, that this
aifidavit is not sufficient as to the inability or
materialness of the witnesses ; as to the fint it
appears, that they must have had fourteen days
time to have made this cmpiirv, as to LilUng-
ston ; and though they pretend to say Tomer
was here on Friday, they do not sajr LilMng-
ston was ; they could have gone on without this
Ijitlingston then, for it does not appear that he
was here on Friday last.
Tliat if it had suited the convenience of the
Court to have gone on on Friday, they muftt
have gone on without Lillingston. There is
a great ambiguity in the affidavit ; it says, that
the tumour had been laid open, and that he
had a hole in his leg, and lies in the Fleet,
and that Lilliugsloh positively cannot be bronght
out. ileally, as to liillingston, he han fallen
in very particularly ; the o^eutiun arose as 10
him above fourteen days ago, and they might
have applied to the Court in time, so he oi^t
to be laid out of the case, and he is to be
laid out of the case. — It is sworn as to tlie
other, that he was out on Friday: hut whe^
ther he was subpoenaed or not, is not sworo •
As to their indisiiosition, the apothecary onl^^
swears, that Turner was ill of a p!«;uretic fever ^
but I submit it, whether they must not NH-ea.r
(msitively, that he cannot ct»me out. I dar^
sav, there is no such witncbs wanted. 1 tik.«
notice ol'tlfis, to shew that v. hen they comelo
speak of Turner, they cannot speak so fuJIaa
they do to Lillioj^ston. Comer bays, that it
is not safe to gt) to trial williout this witness,
but he don't say whether it is sale to proceetl
to trial with; I don't know whether the trial
is safe, if li*.^ \\i\9 tried upon this witoe&s^
Hero is thesolicilor ior the cniwn, to besure
he knows il:o «rrrrts of the cause, if this n»ao
is so nmtcri:il a wiinsss, ho ou;>iit to aw i-ar t<' i t :
We oui»ht to h'Wt' the best aceounl we ra:i »
and now wc hair not the best account, l»ecaii«c
the solici»'>r for the crown di»cs not tak**
upon him to s»'.<Mr to tlie fact. It is n*>^
ma'!e out that iIm'v an* so niaterial that theJF
can't fxo on without tliivn ; nor dors it ap'
pear, that tl>ry aro so hnd as not to be able to
come out ; though 3ir. Attorney is phrased to
say, that it r:tnn:)t l«» :uiy injiiry to the prt-
soner, lor that h'<h'iil must stnnd; I don't b^*
liove the kerprr of iSeivgritc will venture to 1^'
him go out wiihout fresh hail, mid whether tb***
ha* I will stand or not, 1 don't know.
Bambri-f^e. On the }:;!i of this instaot, *
served notice on Mr. Piixton, that 1 would sui^
render .my self ou Friday, to take my trial} aP^
877J
Bailing Thomas Bamhridge.
A. D. 1729.
[578
it IS foarteen days since Lillin^ston has be€Q so
ill : this is an iodictment ibr btealitiff the gfoods
oTooe Mrs*. Berkltfy, who has lately declaretl
that she is not concerned in the tnal. As to
Comer, who has made tlie affida?it, he is a
coamoQ Ubi^uitarian, and if [ ana to be coo-
fiaed upon his affidavits and Ilarbing's, and
the rest of the couspirators, i shall be kept in
fMl to the day of jiid^pnent; and it is such an
apnce, it will ruiu any one. I am umler a
ansHty to importune the Court to be put upon
■j^ trial, for there is a person come out in a
cnir, that is a material witness for me, that is
ii dnmr of his life, and cannot, in all proba-
ttlj, bf e till next sessions ; it is Mr. John
Bpwham, the king's jeweller.
L C. J.^ You must make an affidavit of it ;
I^nol mind any thing but upon oath. You
■we Bieotioned, that there has been great de«
1ms 10 this affair : you should acquaint the
CJout that it has been put off irregularly : has
ilMt been done in this place, t£it the same
■nmsi that a man has been brought to be
tried, it has been put off? This is the act of
God.
Bmhridge, They should have set forth the
iaewhen they were taken ill.
iff. Gen, There is no criticism in the affi-
Mt: I will ask any of those gentlemen,
vhdbcr thev ever knew in the Kiog^s -bench,
«Caiirt of Exchequer, the times mentioned?
Hr. Strange In the last instance (that they
U been subpcenaed).
LC» /. Subpcenaed is not the question,
.iff. Gen, Did you ever say they were snb-
fancdin an affidavit?
LCJ, As to the merits, I know nothing
*rthat : this is nothing but a motion to put off
Ac trial; I don't see any thing distinguishable'
bit. It would be very hard for him to lie in
pal, if he was not admitted to bail.
Serj. Cheshire, They sny, it don't appear
Ibil the man was 8ubpoeua«?d : I ask any oi*
1^ gentlemen, to shew, if ever they found
'n in an affidavit? I was surprised when
titb«r of them mcntionetl it : they insist so
ttiKli u|ion it, that they will think there is
XHhetliini; in it at last.
L C. J. They must say what they can for
l^ir clients.
Mr. Kettleby. We don't know who this
^^Qsieris: if Mr. Paxton will s«vear these peo-
H> tie mattriiil witnesses, we will give it up.
L C, J, Has not Comer been cm piny ed jn
IW whole prosecution, and beeu fully apprized
(ftheaffidaviU?
An. Gen, This is the slightest of all their
*l!|ec!ions ; for they may as w<>ll desire the
AUoraey General to make an affidavit: the
Cnirt expects no more than that a person, ac-
^itinted with the merits of the cause, should
^nr tliat they are inaterml wiinessfs. it
I if done by a person to shew to the Court,
fct they have reasHin to believe th»t thoy
*ft material wiiiifsses, tliat is sufficient.
Bt iv«ara, that he had been employed to
ttnry on the prosecution for fdony against
VQU XVII,
Bamhridge, of which he is indicted, and ac-
?uainted with the informations taken upon oath*
t issiud, why did not Mr. Paxton swear it?
May there not be two solicitors in a cause ?
Does it not olWn happen, that there is a clerk
in court and solicitor concerned in one cause P
Why don't they say a clerk iu court should
make it ? We have done all that is requisite to
show that they are material witnesses. Ha
could not swear it, unless he Idmself had aeca
the iufonnatious.
L, C. J.i He swears, that they cannot aaielj
go to trial without these witnesses.
AtL Gen, He says, tliey hoih are material
witnesses, and it is not sate to proceed to trial
without them ; and that is taking upon him to
swear as much as ever was required. It is
urged, that Mr. Bambridge!a bail has surren-
dered him : supposing that he was quite out of
custody, and that he gave notice that such a
day he would take his trial, is that a ditcharj^
of his bail? No ; his bail is bound till he is du-
charged by tlie judgment of the Court: sndi
notice to take bis trial can be no discbarge.
One of the gentlemen says, that there was
soinethinc^ like an affected delay ; we were
ready to nave tried him iu July last.
L. C. J, That don't appear mm you: whom
has it arisen from ?
Au. Gen. It might have been tried in July :
there wait then a tenderness in the judge, and a
very lamUble one ; bi\t 4ie said, U Mr. Bam-
bridge did not insist upon il, be would try him.
When the whnesset are here, then the prisoner
is ibr having it put off; when they are not
here, then he is for liavisv:^ it tried.
Biunbriiige, That InniMirable gentleman
raused t!io fial to ha adjourned; and I must
subiait, *.vheiher \i was kuown for a jmliife, that
was a part}', ever to try any man. Wiiat tlio
Attorney urj^-^d bei'urewas th<it tUe Court of
Kint^'s-hencii ori'crcd informationb*, end thea
prucecdcil to the ti \yA of thorn. As to Cornier,
he is not a clerk of Mr. Paxton's ; he is only a
Hie el Ubiquitarian.
Mr. J list. Denton, I am of the same opinion
as my brother Uaymoud.
Bambriftge. I will not take up the time of
the C'ourt. If this gentleman, who I before
mentir>ncd to be a material witness for me,
should die, it will he i^reatly detrimental to me;
therefore, if your lordship will let him be exa-
mined in court, aod leave the ring in court, K
wil! consent to let the trial be put off.
Mr. KeAtlthy, 1 should he very glad the
Attorney General will take the trouble to exa-
mine him.
Att. Gen. I can't take npcn ine to consent
to any thiiit; particular; hut iiJiist submit it to
your lordship.
Mr. Ju-»i. Denton. Mr. Jlamhridge, why
wonHyou hriiig yonr wijness into court?
Bantbridfie. Tlie high sheriff, he not being
well, was so irooil ns to let him be in his room ;
he i<i there, and is coniinir in.
Att, Gen. I never knew it done in capita!
SP
nr««f i«f- «i5^ : an J she hat con<'^
ii<
^ -rc'-.:.: rn ever since.
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. .,- a 10 nrt<»
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,,r,^iss with
■ '^*' k* Uli lie had
ii«« -if.r. -e wroie some lines, v&ii **^ %
* .:n* i-';r:" -r.i of the {^ouds j but t'id ''^'j
.*«:•-••: aay further: hut as he t«irfi^ j^
..viHf ''ii of tlie place, he put a V^^^^0
!ii' :'«-f. and she put her own key »u tb* ^;
II! :vked the door; and there' vias fiot^
I' •:•* further at that lime. ^
Oentlemen, on the 23d of October, B^'!
T'li^e and others, in company with him, ^ -
:tii\ie to tliis iilace in the uallery : he easiiv^'
'Hr.ore the padlock, but it was not so easy '
'.rue op.^n the door ; and therefore, «^entlemel3
;e sent for one (iieenway, a carpenter, tobriol
'. -nls to force the door 0|>en. lie was sent tof
gentlemen ; but they .were impatient ; and odi
'\ the people with tFie defendant, in the roeai
::roe w ith a poker forced open the door. >Ybei
Green way came, they did hid (jreenway Kta'
1 little; then told hini, they had no oecasiu
tiir him. \\ hen he came into the rtMun, th
prisoner himself did direct and assist in break
'vs\'r open the trunks and boxes ; and \\ h«o the
were all (»pen, (liere were found several ringi
and sonut jeMt'N ; ami those thing's thatwei
lii^ht anil portablt: Uainbridt^e put in his pockc
There wen*, ufentlenien, very gooil apparel, i
of tliem m-ide np, linnen anJ other thini^s of
ceiisiiicrHhli* value: for these, ^;entlenien, Ban
hriduo hu'l providiMl a li\r>>[e portmanteau, ai
put tiiom u|i and earrietl them away. Thi
«;entleinen, was the second time of his enter t
the said looiii; and at this time, I shou.d ti
you. yfMit!c'iniM), he did \*i\ on with the tweh
liiKs wr.ic h(l'.)ii>, nihl perfected the said ii
*eiito'y, I su,>|iose, l»\ :i!diii:( S(»me moreg'ood
And ilh'.), up'>n this 'VM\ of October, he wj
ple.isi'd, L;r:Ml«'n;eii, to fix a head to the papc
and dncMtid in what words it should he wrot
v*hicii were tluse : '* An Inventory or A(»prais
nient of (IiHids, nfand bil(ih<(int; to Klizabe^
Ikrkh'v, disCiained the 'i;»rd uf Oeloher, 172
for ri()/. ol an arrear of rent due to John llii|
[lins, esq." (Moticmen, accordin(<f to my ii
sirui'iions, it udl couie from our wisnessfs* th
thtie was a pf rsoii uho pietended to be, ai
was a eoiistaldf ; and iliire v>as a person the
wh<» pretended to appraise the tjfoods ; hut n<
bodv w::s sworn, as h> la>% the\ ou^ht : in th
condiiMiii he did puilect the paper bt(brc-mei
tioiHMl.
In lookinuf over the thinp^s, (vrmlemen. Ban
brid>;:e did ohservf there was a hi nsh and a Ii
tie chaik, sonlethin^' usual amoni^ persons th
wear jewe's to clean them : he cried out, ' Lo<
ahoui, tlnTr are probably Koine jewels ; for the
is somt thin«i^ to clean them with;* and ih<
looked a!id tuiind some riuofs, as o-anuis, eni<
rabN, and topa/cs; :md when he had done I
carried iliein avtay : but what he did with \
of tlicm afteiWHrtU, uc cannoi tell. Give n
leave to vay, my brief iotonos me that he d
sell part o! them for \\ p^iiiiieas to one >\es
souic t;<dd l.ico, near iiu ounces, to one M
liamsi and komesiUe I- tea-spoons, gilt wii
*a
10] fiir Fdwy*
|A ^ •>U or prewnted to Coriiett't wife
(wte wu oae of bifl tipstaflfs) : and lier bed
■rfMBg, which he waa pleased to think
«i my food, be caused to be delirercd to one
Wtojjs delifer to Jenkina a waterman, to
b cvrifd to bb kidf^ngi at Waodiworlh.
Wi; ipeotlnMii, Buuie a fipreat noise, and Mr.
I^■m Gime to bear of it, and expostulated
m tke priiODer, and laid to him, Yon
lit tskeo I good many goods belonging to
Ih ElfssMi Berkley, under pretence of
IMi^ for ao arrear of rent owing to me ;
)m esaU yoa do ao ? There is no rent due to
wu GeotiriDen, in this manner he ezpostu-
llrf. How came you to do it P Tliere is no
MlAie !• me, for there is an agreement with
■yrffpaty, Mr. Gibbons, who was to have the
pMtce of that time ; to what value did you
life? To which the prisoner replied, I have
■If tofcento the value of IC/. ; notwitlisiand-
j^fortlemen, be had sold a ring for 14 gui-
M^ hesides SO oimces of gold lace, aud some
and sent the bed and bedding to hia
in the country : this waa indeed very
dioary.
Il it plain, gentlemen, throngh his whole
flnAwCy be never intended to use this as a dis-
ftcfl ; for when he Sbid the clothes of Mrs.
Bfrblejy be diil not sell them as goods taken
W fiHreaa, but to conceal from whence he had
Mi ; be said. These are my wife's goods.
It H very remarkable, and worthy your oh-
, that though all the clothes were made
A. D. 17S9.
[580
anisinuiil'i or apparel, he ordered and di-
MM Uie person who took the inventory, to
|M dawn only so many 3rar'N, siiificient to
, gown or pettidist ; there wax, gentle-
a dimity gown, which he particularly
to be put down, dimity auificient to
awrap|)cr; which, gentlemen, ^'ou will
Miy gue», was only to conceal its being
vsanng apparel, that it mitfht not be followed;
srslherwnie, why were they not entered into the
iavciitory in ihe form they were, as made into
SMrel? It is very extraordinary, that he
Mold say, ao much of such and such a thinj^
iaiy sufficient to make a gown, or whatever it
wsa; this, I hope, he will give a good account
if; this, gentlemen, he out^ht to explain to
yon: after be had got the' other purt of the
nodi into hia possession, as he had said, the
nrmer were hia wife's, these be said, were left
b bis bands to make money of; not saying
toy •f them were Mrs. Berkley's, taken by
Citress; but be sold part of them as his wife's
a^^ard, and part as left with him by a friend,
Id make money of. IVe are far from thinkintir,
vbere a man takea a distress for rent, where
Rat is due, though he does not let a constable,
ir an appraiser attend, and demean as they
s^ghtytbat this is felony ; though this is a gr«*at
tffpcci, and an enormous abuse, and the law
viH panitth it civilly and criaiinally, but not
Mpitaliy. If landlords send servants to niuko
I dislreaiy and they misconduct themselveii,
■d do not behave themselves rightly, it wouUl
kverj hard to have that tum^ into felony:
w« gentlenen. aim at no auch tbing ; bnt
that la to be taken into your consideratum, with
nw lord's advice. When there is no prateoca
of rent due, no authority for distraining; when
he makea use of a pretence of distraining, \k
get floods into his possession, to dispose of theiQ
as his own, or as left with him to aell ; that
pretence ta get them into his hands, and dia«
poae of litem as his own, or as left with bini
to sell, and not aelling them as prescribed by biw^
after doe appraisement, and returning the tiir«
plus to the owner, will make it capital. Gett»
tlemen, I need not tell you what the law ia id
this case ; bnt, my lord, I will dare to aay,
that though a man comes by goods lawfully, Sy
consent of the owner, if he disposes of them to
liis uwn use, it is fetony. For if 1 deliver
goods to a carrier, to carry them to Deal, and
he carries tliem to sea ; and he should open
the pai:ks, and sell the goods, this ia felony:
this has been adjudged so by all the jn^^oi
in England, asaembM for that purpose.
There is a particular case of an attemeTt
which I shall take notice ef to you : it waa m
the 18th year of king Charles the 9d : he had,
gentlemen, a mind to get abundance of goods,
belonssing to a woman, out of her hotise, into
his povierand posdeHsion: he did, gentlemen,
take a process against her, aud laid the woman
in Newgate: upon which he gets judgment in
ejectment, and got possession of her bouse;
and then, gentlemen, he gets judgment, and
takes the g4M>ds out of the house, and takea
them into hia own possession: there waa a
colour of a process of law; but this waa a
trick to get the goods from the woman, and
done with a felonious intent ; and the man wn
hanged for it. These things are proper for
your considevatinn. Without any further ob-
serrations, we will call our witnesses, and sub-
mit it to your lordship, and the jury, whether
the prisoner's conduct 4lid not shew a felonious
intent, and \ihether the distress was not made
os(r of to t;t:t the goods into his possession, for
his own use.
Alt. Gen, f am of counsel of the same side,
for the king. The indictment against the pri*
aoner at the bar, is founded upon an act passed
in the I2tli year of the lei^n of the late ^ueen
Anne, chapitr the 7ih, for taking away, and
seizing feloniously, ^ood8 t'l'the value or40f., in
a dwelling- house. Gent!eincii, this bring the
statute upon which it is founded; the quesiioa
before you is, upon the fai l iH'ing gi%en in evi«
dence. Attheunif when the fact %^as commit-
ted in October 1797, T. fianibrid(>e was depot j
warden of the Fh^t prison, under Mr. Iluggins;
an unha|)py woman, Mrs. Berkley, a prisoner
in his cnsimiy, lieiug committed there for debt,
had a room in the prison, where she had seve-
ral things of value : she being a prisoner, and
there having Koods of value, the prisoner at
the luir, who was gaoler, ought to bavesufifered
antl |»ermittcd her, according to law, to have
the use of her oun go^nls brought there, and
enjoy ihem quietly, without distucbance f>«»
587]
S GEORGE II.
Trial of Thomai Bambridge,
[58S
bim; but, ((entlemen, probably tbe Talue of so for a time: we apprehend the witnesaei
these goods was the teniptatiou to the fact af-
terwards committed. There were, ffentlemeu,
two times that will be mentioned by the wit-
nesses, that he entered the rooin, both in the
month of October ; one some days before the
other. I don't find that the first day is parti •
cularly fixed,, but the second was 'the 23d of
October 1727 ; and the first time the prisoner
came, was some days before the 23d of Octo-
ber 1727 ; the pritsoner then, with three or four
other persons, Pindar, Barnes, and King^, came
to the chamber" of Mrs. Berkley, in a violent
manner, and caused her to be removed out of
her room ; and as a preliminary step to what
was intended, caused her to be carried down on
the common side, and there locked her down ;
after they had disposed of her, they put a pad-
Jock on the door, and she locked the duor. I
don't find that the gfoods at that time were par-
ticularly taken away by the prisoner, but they
Uiought fit to secure them ; but before they
took away Mrs. Berkley, they made her put
her key into tbe lock and lock the door, and
they put a padlock on it, this was the first time
of entering the room ; the second time, after
dark, the prisoner witli Barnes, Douglas, Pin-
dar, and a person to whom they tho»;;lit fit to
give the title of constable, but whether he hati
any authority or not to act as such, that don't
appear to us, but it is incumbent on him to
shew ; then pulled ofi* the padlock ; one should
have thought, if any ihing fair had been intend-
ed, Mrs. Berkley should have been sent for to
have openeil, or at least, to have seen tlie door
opened. There was a lock upon the door, but
the prisoner ordered the door to be opened ;
but he not haviujr strongth enough himself,
ordered another to break open the door, which
be accordin^^ly did: the duor being opened by
force and violencn, v.ithout sending for Mrs.
Berkley, ihey fell to rifling the boxes; the
I»risouer with his own hamls, broke open the
ocks of three boxes, and tivo trunks ; things
were taken out, and some of those of the most
▼alue, the prisoner thought fit himself to take,
and put in his pocket; those were two corne-
lian seals, gold rings in number five, which
were of some value, one a garnet, another had
a small diamond in it, and another was an ame-
will come up to this. This being tbe nature of
the case, the question to be submitted to uiy
lord, is, gentlemen, what the design of tM
transactions, and nature of it was ? Wc appre-
bend the design was to get Uiese goods wrong-
fully and feloniously into his own custody, ani
take them to his own use ; if that was the case^
the manner of taking them will not alter the
thmg ; for 1 must observe to you, gentlemen,
if a man designs to take goods felonioosly, let
him put it in what shape he will, if that is ool^
the pretence and colour, it is tielony ; nay, if
by colour of the law, any man possesses nim«
self of goods with a felonious iuteot, in that
case it is so far from being an excuse, that it is
an aggravation of the offence ; for the law will
not admit, that under its colour, a man sboukl
l)e atrim»ed of his property ; that instead of ba-
ing a uefcDce against one man, it should be an
injury to another ; for if any person should
possess himself by force of another man's
goods, it is felony. Besides the case meotioo-
ed to you by Mr. Serjeant, 1 will take notice of
one ; that after goods distrained, and the goods
carried away, there is got a replevin of theie
goods ; if that replevin was only colonrably
taken out, to get these goo<ls into his poiscs-
sion, that replevin will not excuse him from fe-
lony. The question is, whether if a distren
is taken, if that distress is only colonrably
taken, it is not felony ^ Therefore, though it
can't be pretended, and none will base i
thought, I hope, that it is insisted on, if a man
intends fairly to make a distress, and errs in the
doing it, though he errs in a great many iu*
stances, that that should subject him to felony;
God forbid : yet if he makes use of a distreu
only as a colour to get goods into his |)Osses-
sion, then it is felony, and circumstances will
come to be material, and his not obser\'ing tht
method which the law directs, will further
shew with what intent the beginning was, and
with w hat intent he took the goo<ts, which, we
apprehend, is material. But what, I appre-
hend, is most material for your conslderatioD,
is to shew the concealed manner of describiag
these goods, the method of disguising them,
and the manner of selling them. As to the firtt
of these, it will appear, that the wearing ap-
tliyst ring of some value, which the pristmer | parel, instead of being descrilied, as really tbev
thought fit to put in his pocket; a silver-ban- ( were, he ordered to be described, as so mucn
die knife and fork, in a shagreen case, and
other things of value, he put i;ito a portman-
teau, which the prisoner sent out of the prison.
After this was done, the rest of the goods were
taken away ; and as Mr. Serjeant has men-
tioned to you, there was a pretence of taking
an inventory of the goods; if that shall appear
only a pretence and colour, that w ill not vary
the case as to him. The bed and bedding (the
prisoner then wanted a bed and bt-dding) he
thought fit to take away ; and, if my instruc-
tions are true, sent it down by water to Wands*
worth, to his lodging; and Mrs. Berkley,
atrer since that, baa been kept on tbe coremoo
tide, without bed or bedding, or at Itait waB kept
stuff and silk sufficient for to make a gouD,
petticoat, or whatever it was. "We apprehend
there could be no other view in that, than to
disguise it, that the truth might not appear.
And, gentlemen, as to the disposal of them, il
will appear plainly, we think to you, such as
shews that the prisoner had no inti ution to
make use of lliis distress ; but' that his original
drfign was, to convert ihem to his own use. It
is very truly said, by the learned gentleman
that has spo'ke before me, that where a maa
possesses himself of gooils, though lawfully,
8upi>osing hedisffosesof those goods for his owa
use, it will make it felony. There ha?e ben
instances given you, where persons caait by
jfer Tdony.
rfuny, bat their disposal of them to |
use made felony. Now in the pre-
» it will appear, the goods, gentlemeO)
ly : as to the ring: mentioned, particu-
; m which the amethyst was set, the
after taking that ring, sent it to one
Solas to enquire the value, and dis-
it to him ; as to the garnet, with a
a the middle, that was sent likewise
be disposed of, to enquire the value of
as to the wearing apparel, that was
»De West for fourteen guineas ; the
was sold to one Harris ; ^the gilt tea«
pre sold to Corljett's wife ; and as to
ind bedding, he put it at first in ano-
i in the prison, and after sent it to bis
ise, with the portmanteao, wherein
igs of value were put. If he had any
dispose of these goods, as taken by
u a satisfaction for any demand or
light have, should not he have given
at to Mrs. Berkley ? And if there was
Ins, ought not be to have paid it over
It will be incumbent on the prisoner,
that he accounted to her for the sur-
t if there is no colour of right to make
SB, no regular method taken in the
ipon the distress, no account thereof
B apprehend that it will appear a pre-
distress, and that only tne pretence
IB was made use of to convert the
bis own use ; if so, this will amount
. We will be^ leave to call our wit*
nd then leave it to your lordship's di-
■en. Call John Turner. (Who was
iJgc. My lonl, Mr. Attorney Gene-
s declamation that be has made, was
o admit, that if there was a legal dis-
le, there could be no attempt upon my
'«n. My declamation!
idffe. That Mr. Attorney, in his de-
ft allowed, if it was a distress
r>n. My declamation ! I said, that it
pear as a colour of distress to commit
idge. You meant in fraudem Icgis,
ten. I sfiokc in English, believing it to
intelligible to you ; you may make
itin words if you will.
en. Did you know Mrs. Berkley, and
r. Yes ; I knew her in October, 1727.
en. How came you to be acquainted
r. By bein^ a prisoner in the Fleet
ibe was a prisoner at the same time,
ed in the second gallery, within two or
IBS of mine.
OB. In what part of the gaol did you
r. I lodged on the master's side, in the
m. How long?
A. D. n».
[699
Turner, I had the misfortune to be there two
years before this Seizure was made.
SoL Gen. You mention a seizure, give an
account how it was made.
Turner, I was called in by Pindar.
Sol Gen. What day ?
Turner. Between the 23d and 27th of Oc-
tober, 1727. *
SoL Gen. What were you called in^ibrf
What to do?
Turner. I was called in by Pindar, and ho
told me, that a distress was to be made ; for
being an upholder, Mr. Bambridge called me
frequently to make distresses.
SoL Gen. Who was there?
l\lrner, Pindar, and I think King.
SoL Gen, Was Mrs. Berkley there thenf
Turner. Yes, but not Bambridge.
SoL Gen. What did you do ?
Turner, I took an mventory of all that did
appear ; we did not then open any boxes ; we
mentioned them in gross, and took every thing'
that appeared in the room, as earthenware, bed
and bedding, and such like things. In about
fourteen days afterwards, Mr. Bambridge came
again, and i was called in.
SoL Gen, Was there any thing more done
then?
Turner. Nothing more than taking an in-
ventory.
SoL Gen, Was there any constable there ?
Turner. There was a person there, who said
he was a constable.
SoL Gen, Who was there the second time,
about fourteen days afler the first ? Was Mr.
Bambridge there ?
Turner. Yes, after they had broke the door
open, I was called in, and she said, they had
committed felony.
Sol, Gen, Did you hear it said, whilst Mr.
Bambridge was there?
Turner. Yes.
SoL Gen, What did Mr. Bambridge say ?
Turner, M r. Bambridge wondered the trunks
were not opened before, and asked Mrs. Berk-
ley for the Keys, and when she would not give
him the keys, Mr. Bambridge himself broke
open the trunks, and rifled them.
Juryman, Was it in the presence of Mt]S.
Berkley ?^l\irner. Yes.
Juryman. Was she there all the time ?
l\trner. She was there all the time.
SoL Gen. What did you do then ?
Turner, Wlien the boxes wer^ opened, I
made an inventory of all that was in them ;
here are both inventories.
L. C. J. Eyre. Tell us who broke open the
boxes.
Turner, Mr. Bambritlge himself.
SoL Gen, Tell my lord what was particu*
larly mentioned in the inventory, what thefirst|
and what the second time.
Turner. The inventory was dated the 23d
of October, 1727, for 56/. for rent due to John
Hoggins, esq.
Sol. Gen, Who wrote the title ?
rurnfT. Mr. Bambridge wrgts it open %
S91]
S GEORGE II.
Trial of Thomas Bamhridge^
looie piece of paper, and said. Let the title be
eo» and the date be so.
SoL Gen. When was the fint diitress naade ?
Distinguish the two times.
Turner, I take it the former distress was
about the S7th of October, and the second, the
3d or 4th of November.
. L. C. J. Who made the first distress? Who
wastttereP
, TVimer. The first distress was taken'by Pin-
dar, Mr. fiambridge was not there ; then 1 took
inTentory of the boxes, and set down so many
band boxes.
Sol, Gen. Afterwards, you say, a particniar
inTentory was made on the 4th or 5th of No-
Temberf
Turner. Yes, I beliere it might be^ about
that time, but I can't be positive, not thinking
it would be called in question.
SoL Gen. In what manner did you make the
inventory ?
Turner. I made the inventory as Mr. Barn-
bridge directed.
L. C. J. Give an account what you inserted
the first time of taking the inventof^;
Turner. A bedstead and sackiog-bottom,
with China stuff furniture, a feather bed and
bolster, a down pillow, two blankets, a calico
quilt, two pairs of sheets, two pillow-biers, two
cane and two stuff cliairs, an easy chair and
cushion, two tables, a looking glass, a fire
1 hovel, tongs, poker, and wooden fender, a
gridiron, a pair of bellows, a hearth bmsh, a
brass hand candlestick, two tin tinder-boxes, a
kettle and two drinking pots ditto, four boxes
and two trunksi three pairs of dimity window
curtains and vallins, one curtain-rod, two hair-
brooms, a large India hand tea-board, eleven
printed books, a pewter standish, two knives,
three forks, two tin coffee-pots, a sauce- pan
and skimmer ditto, a chocolate- mill, one hun-
dred vessels of stone and earthen ware ; this
was the first inventory.
X. C. /. Was there any valuation of the
goods in the inventory ?
Turner, Yes, Mr. Bambrldge desired me to
have a particular valuation of each thing, which
J gave to Mr. Bambridge.
Juryman^ Have you a copy of that valua*
tion?
Turner. No, I gave it to Mr. Bambridge.
X. C. /. When did you give it to Mr. Bam-
bridjifef
'^utrner. When I finished it ; a day or two
after the distress.
L,C.J> Thatwasaftcrthe 4th of November.
Sol. Gen, Give to my lord, and the jury, the
reason for giving the inventory to Mr. Bam-
bridge.
i^riifr. It was, that Mr. Bambridge might
luK>w hi»w to dispose of them.
Sol. Gen, Oo on to the second inventoiy .
Turn€r. A large silver handle kni'e and fork,
two silver s|ioons, two tea spoons, strainer and
tongs, a bowl. Mid handle of a spoon ditto, three
gilt tea spoons, a strainer and tongs ditto,
twenty ounces sAd a half of gold Uce, two cor-
nelian seals set in gold, and a ring 1 1
a crystal.
Sot. Gen, I>o you know it when y<
Turner, No.
Alt, Gen. Who directed yontosc
crystal?
Turner, I do not know particniar
bodv was of oninion it was a crystal.
Att. Gen. How many rings were t!
Turner. I saw bat one ring, the otl
loose stones.
Sol, Gen. You may go on with the!
Turner. One small emerald, o
garnet, a seed pearl, five diaper n
stitched top of a toilet, with lace roi
a two pinner head of MeckHn lace,
ruffles, a handkerchief and apron i
Flanders laced <»p, worked head, and
three double ruffles, one bead of hal
lace, and a pair of sinffle ruffles, ten o
of Flanders and Colberteen lace, al
yards of black lace, afurbelowedscarf i
trimmed with black lace, one yard of
tring, two yards of xvhite sarsenet, b
sufiicient for a lining, striped dimity
for a gown and petticoat, some old
for a lining to ditto.
Sol, Gen. Before yon go off from
ticular, 1 mnst ask you a question
these mentioned in tlie inventory, sufE
a gown and |)etticoat, and sufficient for
were these pieces of silk, or were they
into clothes ?
Turner. These were things that I
scowered and rolled up.
Sol. Gen. Was the dimity ?
Turner. Yes, it was rolled up as
from (he scowerers.
X. C. J, Was it in the shape of a gi
I'urner, Yes, it had been a garment
then rolled up.
SoL Gen, Was it in regard to the 1
same? — Turner, Yes.
SoL Gen, Be pleased to observe,
and lyhite flowered satiin, which is sel
the inventory, to be siiflicient for a g
petticoat, was that made up ?
Turner. That was made up.
SoL Gen, How came you to put it
much suiRcicnt for a <;own and )>eUico
Turner. 1 observed at that very tini
Bambridge, and told him, we ustiall
distrain wearing apparel ; upon wliicJ
said, put it Sown sutKcieut for wearinj^
X. C, J, (jive a direct account uf '
ticular again.
Turner, 1 s^id to Mr. Bambridge,-
don*t usually set down wearing appar
Mr. Bamhrid^jfc said, Put it down suff
Kuch and such a thing, particularly,
sufiicient for the linini^ of a gown,wl
made up ; if it was the body of a gowi
me put it dawn sufficient for a body,
rest, of a lininu*, sufficient for n lining.
Sol, Gen, The (question is, Wiiell
were actually mode up, and set downoi
cientP— TtfTNer. Yes.
69S}
Jar FeUmy.
A. D. 1729.
[594
&/. Gtn. Mention them particularly.
TurntT, There wbb sarsenet, sufficient for a
wrapping-gowHi that was actuallj made up.
5o/. ijtn. You just now said, that the thingfs
Tou ba%e mentioned you g^ave a valuation of
ie|iaraieiy to Mr. Banibridg^e ; was there any
faiuaiioD on tlie inventory you kept?
Turner. The total sum nj^rces with the same
uMr. Cambridge had, 27/. 16f. M.
Sot. Ges. Do you remember any discourse
jisbad as to the settings the value r
Turner, Upon a cursory view of takini^f the
itveatory, I brnu;;ht it to 30/., and Mr. JJam-
iiriilze said, You have over -rated these things ;
yiQU most consider there is a cbr.n(ne attending
this di&trevs, and payintjf you I)e8ides, and that
vonld lessen Uic value of the things ; and bid
■e consider it a<>ain, and upon looking it orcr
igiia, I brou$;htit to 37/. 16it. 9:/.
&i^ GcJi. Were you upon nafb ?
Tenter, \s hen i signed tiie inventory, and
finiihcd it, there wns a coustablr, and I did
nke an oath, and I told jlr. Bambridgc there
oifbtto he two persons to make the appraisc-
Dfot; to uhich Mr. Cambridge said, I might
tike Pindar ; but Pindar refused, so only my-
nirnKfled it.
&/. Gc/i. Pray give an account, if yon
laow, what is become of the goods in the in-
naiory?
j Turnvr, \ do not know any thing of them
j ^bv rumour.
1 &r. Gen. Pid yon sne any of the things
J ttnicd awav hy Mr. Bambridtrc P
I Turner. Ye8,thc wearing apparel and seals;
Ike seals he put into his pockets.
L. C. /. Tell what he put in his pocket.
Titrntr, Tiie gilt silver tea spoons and rings.
{ LC.J. ^Vhut did he put iu the port-
Bttteau ? — Tamer. The doilies.
L C. J. Were tliesc iu tiie inventory ?
Turner, Vps.
<^. Gen. \\ hat became of tho portmanteau ?
Turner. It was carried out of the room by
Ur. bunbridge\ servaut.
Sol. Oca. Was there any brush, such as is
Uei] to clean jewels w itli ^
Turner. Yes; Mr. Bambridgo I'wkcd very
ittrrowly, and at i«ist a brush ap|M;ai-ul : and,
(ip<'n iceing of that, he said, Certainly there
veresome diamonds : upon which 3irs. herkley
*u very much chagrined; and she said. If
you Hnd them, wdi you take them ? And after
>liM he searched, and Ibund tlic rings nud other
Mooes.
Sol. Gen. Was there any discourse about
T*trmr. There was i large parchment in a
CiM; sitic said it was a Hccree: It was in a
pmt nt'ind case, which 3Ir. Bambridt;c took ;
>pw Hhich Mrs. Berkley said, What, wilt you
Jltor.-itje my papers i* Yes, says he ; and if i
«d a!iy b<Kids or bills, 1 will inoke u«e of them.
^U Gtn, What became of her aftrr they
■t«fe^ tlie room '
Iwnir, After the first seizuro, she was
^Brofd out of her room, and pnt on the common
VOL. XVII.
side, and kept there till the second seizure was
made, aud then she was put into a room without
ahc<l.
Sol, Gen. Was there any furniture Icf\ ?
Turner, There was earthen ware, and stuff
curtains ; but no bed.
Sol, Gen, How has she lain since ?
Turner. Without a betl.
SoL Gen. What condition of mind ivas
she in ?
Turner. Sometimes slie talked yery well,
and much to the purpose ; at other times slie
would talk wild, and would not believe that
lord Harcourt was dead ; for she said, Im
would do her justice upon them (meaning Mr.
Bam'undge and his accomplice). I said be
was dead : She made answer, she would not
believe mc ; for they would find him alive U»
their costs.
SiiL Gen. How did the woman behave her-
selt?
Turner. The woman was much reserved,
and kept herself to herself f cry much. She
talked much to the purpose when she did talk |
hut it Mas difficult to get her into it.
Ait. Gen. In disposing of the goods iu the
manner you did, sutticient for such and such a
thing, whatrukson had you to do it f
Turner. It was Mr. Bamhridge's positive
directions: i sliould not have thought on* it
myself.
"L. C. j. Who made the difficulty first ?
2'nrner. I did, and said it was not customary
to put down wearing apparel in inventories upuB
seizures ; upon w hich he hid mc alter the
names: I said it was not pro|ier to alter the
names, aud they ought not to be mentioned
at all.
I'. C. J. What did Mr. Bambridge say f
'Turner. Mr. Bambridge said, I must have
you let them beset down, stuff or silk sufficient
to inakc a gown, or whatever it was.
/^C. J. Did you set them doivn accord-
ing to the best of your judgment?
Turner. I did.
S:>1. Grn. Was that the real value you set
upon tbein ?
Turner. The first valuation was the price I
woiil.l iw.vo givrn for them ; and when Mr.
BurobridgL* .suid the costs on the distress would
como to nvjre, I roducod them three pounds.
Sol. Gen. Would you have given the value
first set upon them ? — Turner. Yes.
L. C. J. Had you any other reason to alter
the valur,than that Mr. Bambridge bid you ?
Turner. No.
Bawbridgr. 1 desire, my lord, he may lie
asketl, whether 1 tlid not insist upon having
every thing particularized in ihe iiivcutury.
Turner. Yes, ynu did.
lic.mhr'vlzc. You say, I did dri:nnd the
kovs of Mrs. Berkley, mid she rofusi d lo I- 1
ine have them, and tht u the boxes wcro opLT.cwf
Turmr. Yi?s* 1 said so.
1,. C. J. \ llinu(»nt yon did.
Bamhridne. IMy lord, Turner said that there
wasnome gold lace.— Whose was that i
SCI
595] 5 GEORGE IL
Turner. It was the trimmiiig of tfaie flowered
eoit of clothes ; it wss tbetrimmkig of the suit
of tattiD clothes ; ptrt of the Isoe was reBiam-
ingoD them.
Bambridge. Were there not sereral things
uooDade?
Turner. I said, that called a striped dimity
came from the soowrer's.
JL. C /. As to the dimity, giro an acooont
how that was set down.
Tktmer, That I set down, as it araeared to
me coming fVom the dyer's as a roll of silk.
Bamhridge. Were the things taken away,
part mentKNied in the inventory, or the whole ?
l\tmer. All that I saw talien away was in
the inYontory.
'£. C.J. Is the inTentoiT the same you de-
lif ered to Mr. Bamhridge f
T\imer, He had every article here, with the
prices annexed. It is a wonder I had any
copy ; lur 1 did not apprehend that any person
wonid call upon me about it.
Bamhridge. I desire Blr. Turner may ac-
quaint your lordship, as to the conversation
that was between me, Mrs. Berkley, and him,
at the time of making the distress.
Turner. Mr. Banuiridfesaidjitwasashame
she should life so long, and not to pay any
rent ; for that it amounted to fifty pounds and
upwards, and she had money enough to pay
it ; and said, I am informeu you ha? e been
abused, and I will oiquire into your affiurs,
and see if I can't extricate you out of your dif-
ficulties.
£. C J. I think there was a demand of
56/. ; was there not f
Turner, I did not hear of any demand; he
•niv talked of it
LC.J. What did Mrs. Berkley say P
Turner. She said, it was the house of the
kinff ; and if she was ^there, the king should
finuherahouse.
BMbridge. I desire he may be asked, whe-
ther, when I was in the room, he did concei? e
what was done was with a felonious intent.
Turner, I did think your power was suffi-
cient to do iL
Bambridge, Have yon made any other ap-
praisemenU?— Tiimer. Yes.
Bamhridge, Did yon make any alteration in
them?— TWn^. No.
Bambridge. Was the appraisement done in
a private manner, or did every body know iti*
Turner, Every body did know it.
Bambridge. Were appraisements usually
made publicly or privately ?
Turner, Kndar used to come and say, there
•re ffoods to be distrained; eo I did it
£.C,J. So it was left to yon then, to ap-
praise as your discretion should lead you?
I^uner. Yes.
L. C. J. Pindar came to yon now, in this
tAtrP^Zkrncr. Yea.
Bamkridge. Pindar, my kivfl, was indicted,
tnlaknoffhisnvMlence.
Mr. Jaat Bmaoidt. Was there a nonstable
* tenWldung the diitreK r
Trial of Tkanuu Bambridge^
Turner, Yes.
Alt. Gen. You said, there was a mi
a constable: Did you know him to I
sUUe?
Turner, I believe he was a constabl
Att. Gen, Did you believe the n
came a second time, to be a real const
Turner, Yes. It has been enqu
since.
Bambridge, If it was a felony, it wai
committed in October 1727, and n
plained of till February or March last
L. C. J. You are not come upon ;
fence yet.
Bambridee. Do you not know the
the constable?
Turner. I think he was a currier.
Bamhridge, Was it the constable tha
attended upon seizures? — Turner, Yi
^ Mr. Fimer, You say, that Pindai
sired by Mr. Bambridge to assist in
praisement ; what business was Pinda
Turner, He was a distiller.
Mr. Filmer, Did he not ludertake
praising of the goods ?
Turner, No, ne refused it
Air. Filmer, Did not Mr. Bambric
himtoit?— 2\(nitfr. Yes.
Mr. Filmer, Was there a constable
cgnd time ? — lurncr. Yes, both time
Tomer was going away; but w
back at the request of Mr. Bambridg
siring to ask him a question or two mo
L. C. J. Propose your questions to t
first.
Bambridge. I desire he may acqui
lordbhip, whether, at the lime when he
ed the goods, I did not recommeiul ii
Berkley to pay the rent; and said,
slay some time, and save the goods fn
disiiosed of.
Furrier, Mr. Bambridge did say
imjiosed on ; and said, he would give
assistance, and bid her send to her I
get money to pay the rent
/.. C. /. He said he would stay ?
Turner. I did not hear him say it
An. Gen, What did he say i
Turner, He said he would assist
beiug imposed on ; and did desire he.
for money to pay the rent ; but I did
him say any words as to his stayio]
rent
Thomas Wilkimon sworn.
Mr. Willes, Do you know Elizabe
ley ?^ Wilkinson, Yes.
Mr. Willes. Did you know her in O
Wilkinson. Yes.
Bambridge. I desire, my lord, bd
further examined, he may be aaki
money he has received, and how loo
been kept to give evidence against me
L. C. J. That is not a oucstiDQ
asked.
BmiMdgCt h is true, 1 aa tort.
for Felont/.
Bv imt JUynoldt. Van mii«l prove ihat.
^C.J. Yoii cannot uk ■ inoa any thing
b to acruKe himncir.
»bniigt. I dnit'l ask to Ihe corruption ;
:r he receiveil llie inoaey.
t, Keunoldi. It carries BD imputalioti
_Mt. WUle*. Ha may prove it if Iiecim.
dtt. Gen. If Mr. Hainbriili^e prove ir, it will
ftaoJy to ilia credit iil'lhe wiLiicxi.
Ht.'WilUt. Ifheilon't, it will Ko as to Uls
•«■ erariil. Vol) kncn Mni. Berkley in Orto-
W, 1797f— ffittioBn. Yes.
Ut. WiUa. Where did ohe lodge 7
WiOiinton. In No. 8, Dear llie IroDl of llie
Mr. ITi^et. Where did you lodge?
Wdkinton. Od llie cDoimon side.
Hb.Vfitiit. DidyouseeMra.BecUeyatbcr
Jnr.wfaen it wax broke open?
VmUimm. Yes.
Mr. Wiilit. VVLattimeof llie year wuit?
BVtinj/m. Tlie Utter end orOclnber,
Mi. W'llUi. IVhattimeof Ihedsy?
VJkintoir. At six o'clock at Diftlit.
Ur. IWlia, tVas the door locked wUea she
mtliere?
Wkimoa. It waa locked nilb tivo padlocks;
m Piwlar took ofT,
IHt.WMtt. Whowaslhere?
ViiJiiaum. Mr. Bambridge,acoaat«lile, and
Bnd.
Ht.Witla. DidPiDdartakeofftliepadlack
•fliitawn accord 1
WiHamon, Mr. Itambridge ordered liim to
Utitaff. There was another pudlock on, and
Bna went tu fetch a haininer lo break it oR*.
Kr. WUttt. Who onlereil liim to letch a
faaaarT — ll'iMinwn. Mr. Batiibrid^.
Xi. Ii'i///i. Did they attempt to break off Uie
pfek with lhat hammerf
ITiltiiuiHi. Ves.
Mr. N'lifo. Wai Mr. Bambridgc by all the
^t—WitkitKn. Yea.
Mr. tPiUn. ^Vaa the door broke o|ien with
whuniDer i
yttthmon. Barnes, because Ihe harunier
*laU ant Jo, neat and fetched a poker.
Mr. WUtt*. Whatriidhedowithibepoker?
VitHmon. lie broke open the dour with it.
Mt, WiUet. Who stood by at tlist time f
I'l'liinion. Turner, myself, IJarnet, Piiidar,
■*llr. Uambridge.
Jk.WUla. WhMdidMr.Bambridgeorder,
''^tbe poker waa broug-bl ?
BVUmion, After llie [mker was broughl, he
*«td biln to break open the door, and so he
Mr. Willa. Wbeii the door was broke open,
*)■ went ID with the eoostable t
^liKiuoii. All went in ; Mr. Bimbridge,
Mm, Finilar, ttw conslabto and nijseir.
Mr. Willa. Yoti^ inenlion a countable ; do
hi kaow him lo bit a conxtatdc t
Viiiituoa. Only by his hating a ilafT.
Jfi-WJIa. Was thai all the reaaoD you bad
"Mnc baa lb b* a counabk f
U'.«.fijwn. Yes.
Mr. If'i/f«. Bare you M
CS«^
Villant.
r biro only Iheo, and n<
Mr. WilUt. Was Mrs. Berkley there I
tVilkiiiim. Yes ; I went to fetch ber up,
and Mr. Dambridge iosisied upon her opening
the door ; but she would not open ihe door her-
self; ao Mr. Baintiridge ordered the door to be
broke n[>pn.
Mr. Il'i//c>. When he came up, and broka
open the door, and came into Ihe ToDm, what
did he do?
Wilkimoa. Mr. Bamhridge desired Mr.
Turner to take ati inventory,
Mr. Willa. Of what?
WUkiiuan. W all the goods in the rcom.
Mr. Willa. Waa Mrs. Berkley come inl*
(lien
uF
ilkinion. Yes, she was there.
Mr. WilUt. What did Mrs. Berkley say ?
Wilkinton. She said, it waa a robbery, it waa
not justice, it wa» felony ;. aad she did not
doun but he would be brought to account lor it
L. C.J. Was she by?
WUkinton. Yes, aod MW Ihe room broke
open, and Mr. Bambridge order Mr. Turner ta
nuke an inventory.
£. C. J. What did Mr. Bambndge say then *
Wilkimon, 8el down surb and sucli things.
L. C. J. What did they take an account olT
H'i/J:inion. They took an acuouni of some
ihingi belbre they opened the boxes.
L. C. J. Were the boxea bickeil ?
Wilkinion. There were two boxes locked,
and one nailed.
L. C. J. Was there any trunk f
Wilkintoa. 1 don't remember that tliere was
a trunk.
Hr. TTt^'cf. Woi she asked to open the
hones f^lVilkiwon. Yes, but she refused.
Mr. WitUi. When she refused, who broke
them open ?
K'i/itiniaii. Mr. BamUridge broke op^n Ihrea
'ilh a hammer.
Mr. WiUti. Was she in or out of the n
t the time ?
Wilkimrm. She was in the room.
Mr. Willa. Wliat did she sny J
Wilkinson. She said it was a rtMiery.
Mr. H'if^ri. Wheu the boxes ueiv broke
open, what i^os token out?
W-lkituon. Three suits of clotbes.
ftlr. Willa. Who took them out?
Wilktiuoit. Some were lakeii out by Blr.
BambridKC. and some by Mr. Turner.
Mr. WiUa. By who.r — '- »
ICilAiruon. i'hiiia, flowered cuilaius, two
guld seals, and twii rint{s.
Mr. Willct. Had they any stonea in ihem f
WitkinioH. One lia.1 a stone, ihe other uoL
Mr. WUIa. Wereatllhethiugi in thabolM
ctuii«taw»yr— Ift'Mmnt, Yea,
50D]
S GEORGE 11.
., Mr. Willes. By whose directions P
WUkifuon. By the directkni of Mr. Bam-
brit)(re.
fir. WUU9, Were all oftbeni, or only some P
Wilkinson, 8ome of ihem ; the bed WM
carried away.
Mr. WilUi. Who carried it awa^r P
IFii/riRson. I carried it away into a lamber
room in the prison.
Mr. WlUet, W hat became of it afterwards P
Wilkinson, 1 saw it carried to Dorset- stairs
after.
Mr. Willei. By whose order P
Wilkinton. By Mr. Bambridge's : I stood
there while it was gone ; he gave directions to
carry them to the water-side.
^l^. Willes. Did he onljr c'lfe directions to
carry them to the water- si£, or any where
else?
Wilkinson. He gare directions to carry them
to Wandsworth.
Mr. Willes. Wlien did he gire these orders ?
Wilkinton. When he carried them out.
Mr. Willet. What became of the rings P
Wilkinson. I saw them put in his pocket,
and he called Savage and Douglas to bcSur wit-
ness.
L. C. J, What was the reason for calling
them to witness ?
Wilkinson. Mr. Bnmhridge said, that he put
them in ttis pocfcet for fear of their being lost.
Mr. Willes. What did he order to be put in
tlie portmanteau P — Wilkinson. Wearing ap-
parM, and such like things.
Ml'. WUics. Where wa.^ it carried P
Vilkhisun. Into the lumber room above
stairs'.
• Mr. Wil/cs. Why did he order iheni to be
put ii:lr> tlie porhuantcaii i*
WUhini'ni. r»t»c.iu«', he said, the portman-
teau would hold them all.
I\»i*. Wills. The clothes, some of them,
j\'Qyc very ric'.j ; were ihey uot?
II ilkii^sori. Yts.
Mr. l\ iHfs, Were tlioy put in ibe portman-
teau ? — V.'ii'tunann. Ye-;.
Rlr. n 7//tA. Wiis inis. f>ciklcy by when the
rlny-s >vfrc put i'l his jiorketi*
\Vi/hiu..on. Yes, and he called Air. Douglas
and olhfT po-.sons as witnt^sesi*
ATr. W'l/Us. Uhatdid iMrs. Berkley say ?
H'*//i/«i'7«. It was felony and robbery.
Mr Willes. Did he say any thinir to Mrs.
BerkU y, when he put them inhi!* pocket ?
]\ itkinsoH. Mr. Hanibridge said, he did uo-
thii)(; but according tu law, and he would an-
awrr if.
"Mr. waits. Was there an emerald ?
II i/umwfi. Yt-s, I think there was an eme-
rald, and i\ jrarntt, out of a ring : he put tiiein
in iiis pocket.
' f' J What did he put in his pocket?
V sin. Two (Tfdd seals, two gold rings,
an enieii. d, and a tj-arnet.
L. C. J. Wer;- ilie rings plain?
Wilkifwn^ One of tiiem 1 did not see pcr-
Trial of Thmas Sambridgef [GOO
L.C.J. What was the other r
Wilksnton. A stone ring; bot tht middle
stone was wanting.
£. C. J. Were there any thingi beridcs P
Wilkinson. There were two ailrer-handle^
knifes and forks.
L. C. J. 1 only ask as to those thingM be
put in his pocket ; did you see any other things
put in his pocket? — Wilkinson. No.
IVIr. Willts. Did you never see a stone called
an emerald afUrwards?—«iri/^triso». No.
Ati. Gen. Recollect bow many rings there
were.
Wilkinson, There were two rings, and two
seals.
Alt. Gen, Arc you sure there were but two?
Wilkinson, Yes.
Att. Gen. Had they stones in them P
Wilkinson. One of them had a stone oat in
the middle.
Alt. Gen. As to the bed and bedding ; wby
did you say they were to ^o to Wandsworth P
Do you rememlier the particular hands be sent
theiu by, to be put into the boat P
Wilkinson. Tom King was one ; as to the
others, I diiJt not know.
Att. Gen. What did Mr. Bambridge say in
your bearing ?
Wilkinson. First, he said, they were gomg
to be sold at a sale.
Mr. Willes. Who directed yon to go to Dor-
set-stairs P
Wilkinson. He sent me down to the stairs to
the waterman, and bid me tell him to go away»
and not stay.
Mr. Witlcs. Who did he bid you ask for ?
Wilkimon. Ue bid me ask Vur the Wands*
worth waterman.
Mr. Willes. Where were the rest of the
goods carried ?
Wilkinson. To Will's coffee-house in Bell-
Savai-e vard.
Mr. WUlcs. II ow came t1;cy to be carried
there ?
Wilkinson. Mr. BambriJ^^e lodged at Will's
coffee-hoi.*e.
Mr. Willes. What were the thiols that were
carried to Will's cofiee- house ?
Wilkinson. An easy chair was carried there ;
I carried it myself.
31r. Willis. How long was this after the
goods were taken from Mrs. Bt'rkley ?
W^ilkinson. Some days : it was leh with Mr.
Turner tu clean ; and then it was earned to
Will's coffee house.
Mr. Willes. By whose order was it carried ?
Wilkinson, it was carried by Mr. Barn*
brid|;;e's order.
Mr. Willes. Whom was it delivercti to?
V/ilkinson. It was delivered to the man*i
wife at Will's coffee-boose by Mr. Barn-
bridge's directions : 1 carried it up oue pair ol
stairs.
hanihrid^e. I desire he may acquaint youi
lordship, W he did not fetch Mrs. Berkley tO bs
present at the oiiening the door,
Wilkinson^ I did*
COl]
fir Fdony*
A. jf/ino.
[809
L. C. J. lie nid to, and that Barnes was |
ardeced to fetch a poker to open the doer. — 1 1
ask vou,i»betlierhe talked uitli Mrs. Berkley
for the payment of rent, for which the goods
were di^rained ?
Wiikinion, Mr. Bambridge did say some-
thiDip to her about seizinj^ for reut, and he
woaU stand by it: She said, he could not
iiise weariugr aiiparel for rent, and tokl hisa it
«iifek>ny, and downright robbery.
Bambridge. 1 must desire him to aeqaaint
jm, w better it was not some days before the
fMds were remo? ed, after the last distress.
L. C. /. Answer that.
Wdkifuon. Fire or six days.
Cambridge, Were tbey carried'oat publicly f
WUkinwn, Yes.
Bmbridgc* Were they carried out in the
in-time ?
Wiikinion, Yes.
Bambridge. Were fhcr not carried out of
He Innber room publicly m the day-time ?
WiikintoH. Yes.
Bambridge. Was it a public room to put
hnberinP
Wilkinmm. Yes ; but it was always locked.
Bambridge, I think he has acquainted the
jvT, that she was present all the ume.
WUkinton. I think she was.
LCJ. Was Mrs. Berkley there diiriog
IW time Mr. Turner made the inventory P
WiUduoH, I think she was.
Baa^tdge. Hesaid,that I called Mr.Savar^e
ni Mr. Dcmglas to see that I put the things
ii By pocket : Mr. Douglas, my loid, bas tlie
Oinpiiiness tu be charg^l in the indict mrnt as
*■ tcfefsary, though he only came into the
^^ by chance, and so I am deprived of his
cvuieDce : he was put in the indictment to take
•ffltiievifleiicc.
£• C. /. lie is a principal in the indictment.
Bambridge. He is a gentleman of a very
P^ fimi\y ; he is the yonntrer son of a man
'fttlity. I desire Mr. Wilkinson may ac-
^Wiiit your lordship, whether Mrs. Berkley
^Dot present when I said to Mr. Douglas,
*nf take notice that I put the rings in my
LC.J, Was she?
WitkinuiH. 1 can't say positively, liecause it
vn just at last : at tbe latter end, she would
M May in the room.
Bambridge. Was there not a bed ordered for
Kr to lie on?
^ilkitwm. There was a bed brought out of
■e loiDber room, a nasty bed ; and she said,
■U if the could not lie on a bed of her own,
ibc would not lie on that ; but went away.
L C. /. You say she went tway ; you
'■■'t ny ahe was there then f
^ilkinaon. f can't.
^mbridge. I desire to know, if, when he
Med that bed np, he did not bring another
Vi/Aiam. Yes; f said so before, that you
il srdar mter M ; but I Mid it wai a
My
I
X. C. J. Tell us, whether that was i good
bed or not P
Wilkinson. I can't say it waa, my lord : she
had reason enough to complain of it ; for I
lay upon a better bed myself, and that waa not
fit for her, who was a gentlewoman.
Bambridge. Was it any other than what jwas
usual for the people in the house?
Wilkinson. 1 have known i*onie lie on sacks ;
but because thev could get no better.
Bambridge. Were there any better beds there P
Wilkinson. Yes; there were three, and you
sent tlieui away with her's : ever since she
has lain without a bed, unless she has had una
within these ten days.
Bambridge. I desire to know, whether Mrs.
Berkley was turned oat of her room, or went
out of herself, at that time P
Wilkinson. 8he went out of it berselfy when
her bed was taken away.
Ambrose Burgessswom,
Alt. Gen. Do you remember any ffoods
taken away in tbe Fleet prison, and from wTiom f
Burgess. 1 was present, not at the breaking
open the duor, but after.
Ait. Gen. When was it?
Burgess. About I'l days after tbe 23rd of
October.
Alt. Gen. Goon.
Burgess. I heard, that Mr. Bambridge was
going in to look on some affiiirs of Mrs. Berk-
ley's, and I went into the room a little after
the dioor was brokt n open.
Alt. Gen. Who was there?
Bitrg.^xs. There were Mr. Bambridge, Tur-
ner, Suvage, I'indar, Barnes, and Wilkinson^
and one or two more that were strangers.
Att. Gen. What did yon see done there ?
Burgess. I saw the boxes broke npeii.
Ait. Gen. Who broke them open r
Burgess. Mr. Turner and Mr. Bambridge
together.
Att. Gen. What was therein them?
Burgess. Twenty ounces of Orrice lace, a
great many good clothes, and a gr^at many
good tliiui^s.
Bamhriilge. I desire he may raise his voice ;
I c.innot htar him.
L. C. J. liaise your voice.
Att. Gen. Did you see the boxes broke open ?
Burgcsx. I was there present, and saw the
liox'cs broke open by Mr. Bambridge and Mr.
Turner; and saw the china put into the win-
dow, niu\ some Orrice lace ; and saw an eme-
ruld, or niby, which he put in his pocket.
Ait. Gen. What did you sec at that time F
Bur^tSs. 1 saw the rings taken out.
Att. Gen. What did you see put in hia
pof'ket ?
Burgess. One was a pearl, the other aa em^
raid.
Att. Gen. Were they set in rings ?
Buri^ess. They were both separate.
Alti Gen. What is the colour of an emerald P
Burgess It is of a greenish colour.
Att, Gen. These tnen were aeparttUftoiMir
Pbos]
3 GEOltGE II.
Trial of Thomat Bami
jtti.Gen. Weie there any ringsF
Burgess. I can't say,
Ati. Gtn. WlialiliiJ lieilo *ilh iliMestoneap
hurgrn. Ml'. Bombridife iiut lliRin into his
pocket, and naid ihey iiiij^lit be lost il' put in
ihc porlmuiteBu ; ami atlerwanlg, as he was
dTintiitit; punch, he took ihcni Diitof Wm [loukel.
AU.Gr.n. Had she any (fold Inci' IliercP
hurgeu. There was giild \»tx : itlc. Turner
went and «reli;hed ihe [ace, and broiigibl it
hact aKuiii ; and Enid, it weighed twenty ounces
md an liair.
All. Gen. WhotooUitaway F
BuTgeu. I ilnn't rememlier.
All. Gen. You were in company .^ did you
potobBerfe who took it, or whether Turner
earned it away ?
Surgut. 1 did not, u]ion my word, ohscrre it.
All. Gea. Vifre yuu present at the time of
breaking open the boxes, and Inkiog out the
Burgeu. I was pieaent when three boxes
were broke open.
Alt. Oen. How long did Blrs. Berkley stay
in tbc room ?
Bargtit. To the best of my reiiiembruice,
the whole lime.
Alt. Gen. You say you were present when
tlie hoies were broke open ; was Sirs, Berkley
tliere (he whole time?
Burgcu. 1 do not know whether she went
away beliire or not.
Alt, Get. I think you said, vou did not
come till allcr the door was opened f
Burgeu. Yes.
Bambridgc. I think you haie Bci]uaiulcil my
Iffti and the jury, that there were some atones ;
1 deaircyou will iuform him, and as to the size
of them, if they were small.
Burgta. Yes, they were.
Bambridgt. Wu Mrs. Berkley there all the
time? — Burgat. I think the was.
X. C. J. VVbal did you ask him ?
Bambridgt. >Vhat iiietbe stoues were of;
whelitertbey were small!'
Burgeti. Yes, tliey were.
Burges) was going away, and at Bam-
tiridge's desire called rack again.
^•iibridgt. Mr. Bureess declared, that he
beard me declare, that I deured them to take
notice, that I put Ibem in my pocket : Please
10 tell my loid, and the jury, wlial I said when
I put Ihe stones in my pocket.
Burgeii. Mr. Buiabridge shewed them in
his hand, and said, Tor fear tbey should be lost,
Ihey should be iiui in his pocket.
X. C. J, Did he desire Savage and Douglas
to remember (hat lie put them in bis pocket ?
. Bargeu. 1 believe be said so to all.
Satnge was sworn.
Sol. Cm. Were you present at the time when
Itte goods were seized ?
• Savage, 1 was going by the end of the gal-
^— jT^ ud, hearing a husUe, went up.
Sol. Gen. Mention the lime.
Savugc. At the time when the lolt ioTntorf'
was taken. <
Sal. Gtn. What time of Ihe year ?
Savage. The latter end of October, 1787.
&{. Gen. Give an account of what ;
know of this matter.
Satage. I wss going by Ihe enil of
gallery, and observed a number of peopll
at Mrx. Berkley's door, and I went oal rf
curiosity to see what was the mailer, when I
found Bam bridge, Mrs. Berkley, Piodarj
Barnes, Douglas, and Wilkinson, and sfler I
bad been thei'e a very little litne, Bambridg*
asked Mrs. Btrkley fortrunks and huia: I
went into the room to them, and Bambridgt
ashed her for the keys of her trunks and boMt i
she said, I willgiveyeu none; to whieh be
made answer. If you won't, I have auffidnl
uuthority of my own to open ibem, and I
do il ; and ordered the trunks aud boles, tipM
her refusal to deliver the knys, lo be brake
open ; and Bambridgc broke opeo son *
them himself.
Sal. Gc„. Whatwastherefoundtheref i
Saixige. On exoffli nation of the trunkiatd
boxvs, there were found wearing apparel, (oM
seals, thread, and gold lace, clothes very good
of ihe kind, lit tor any gentlewoman to w«r.
Sol. Gtn. Were tliereaay other things?
Sinrage, Yes, (here were; for Bambridgt
found, ID a drawer of a table, a box, wbm
there were rings and seals, and loose stones.
Sol. Gen. How many rings were there ?
Savage. I think there were four ; one «M
red, it was either a ^met or a ruby ; oMtf'
them was wbitisb, with a cast of yeliow, litf
called il a crystal, I look it to be a topax.
Sol. Gen. Were there any other slooea ?
Savage. .Yes, 1 think Ibere were ; one wata
blue or green, another was a ring, where lb*
middle stone was oul, and two diamonds on I
side, (wo seals set in gold, which I todc _
be cornelian, one while and the other red ; tbati
was also a loose stone, and a pearl.
SoLGcn. WhatwastbeloosesloneF
Savaee. 1 can't say wbelheragoruet orntt.'
Sol. Citn. What did be do with them P i
Savage. After he had shewn them, he pot'
them in bis piickel. |
Sol. Gen. Were there any other tbingsF
Savage. There was a sitrer spoon, kuife^ uAi
fork.
Sol.Cen. Whatdidhedowith thst? t
iSusug«. That was put in bis pocket, to ifca ]
hest of my remembrance. )
X. C. J. What became of the aeala ud-
r«?
I
Savage. He put them into bis pocket.
L. C. J. Did he bid you at that liioe \akBi
notice Ihat he put them in his pocketP
Savage, I do not remember that he aoid M. i
Sol. Gen. What became of them after b*^
put them in bis pocket? J
Sarage, 1 do not kuow.
Sol. Gtn, Didbetakethemoulofhiipockti
there?
ms]
Jbr Felony*
A. D. 1720.
[600
Snagt. No, bat he did in the coffee-room
iftrrwArde.
Sol, Gen, Whit became of the other goods ?
linage. The most valuable part of the goods
«u pecked up, and pat into a portmanteau
truak. -
&/. Oen, Yon do not know what became of
4i«lher goods r
Uoage. I do not know of their being earned
«iy, but there was some white china carried
«« the room.
Ir. WiUei, Had not Bambridge a house at
ffadsworth?
&saffe. He had lodgings there.
Hr. WUla. Were the goods carried there P
8bN^. 1 don't know otherwise than by
iM. Gin. Were you by when Mr. Turner
wdiUke inventory ?-^5aTa^e. Yes.
iU. Gem. Do you know of clothes being
p*4twn sufficient for a gown, or whaterer it
m?
Sm^e. Yes, all the clothes were put down
11.
Mi. Gem. Do you know how they came
dbi pet down so?
ta^ Bambridge ordered it
A». Gm. Did it arise from Mr. Bambridge
irTmar?
ftngt. Tuner did object to it, and said it
en SK usual to put down wearing apparel.
LCh Pray give an account whether
Ihi^^^e ga?e any reason for putting the
<^ io his pocket r
Mi^c. I do not know he did.
li-C./. Where tliey inventoried ?
^n^t. I was not privy to the inventory.
^^taSnidge. How long were you in the room ?
&Mfe. 1 believe 1 was there soon aflervou.
JMridge, Did you continue there all the
lose?
&Mfe. I believe I was there most of the
li«e.
^etMdge. Did you see any of the goods
Nsige. I saw Turner write; but 1 do not
Imv what he wrote.
BtK^^idge. Was it done in a clandestine
■isoer? — Savage. I cannot say.
Bsmtrulge. What conversation was there
kitiuii Mrs. Berkley and me ?
Ansfe. What passed was in relation to the
•^MbermH.
Hmtndge. Did not I lay for what 1 seized
Yoa pretended to seize them for
rent
Jiaakndge. Did I shew the rings, or pot
^ in ny pocket secretly ?
Jemge. They were shewn to every body in
^mhidge. Were the rings shewn in the
^ luew P— Ssroge. Yes.
fcrfrWn. Where is the coffee-room?
'■Nfe. In the Fleet prison.
Mr^ge. Was it a public place?
'■Mp. Yts, but U was in a private room
where yon shewed the rings, iu which was
only your ovrn company.
Jacob Mendez Solas was set up to be examined.
Mr. Fihner, Mr. Matthews, let hinr be
swdm upon the Old Testament, he is a Jew.
Mr. Kettleby. I must olgect as such, to his
being sworn at all.
Mr. Just. Reynolds. 1 remember a great
cause upon an indictment, for the stealing of
snuff from some Jews, and I remember
they were admitted to ^ve evidence.
Solas. I am a Christian.
Att. Gen. The objection is at an end, he is
a Christian.
L. C. J. Are yon a Jew or a Christian ?
Solas. I am by extract a Portuguese Jew,
but am a Christian now.
L. C. J. Have you been baptized ?
Solas. Yes, my lord.
Then he was sworn.
Vlr.Filmer. What do you know as to any
diamonds or jewels that were brought to you'f
Solas. One captain Dcuglas brought a ring
to me, to have the stone pulled out, that i
might see how much the gold weighed.
Sir. Filmer. What sort of a stone was it?
Solas. It was an amethist, but Douglas said
it was a crystal.
X. C. J. Who did he tell you he had it from ?
Solas. From Bambridge. Douglas, after I
told him it was an ameUiist, and the value of it,
went and told Mr. Bambridge the value ; then
Bambridge came to me.
L. C. J. What did Mr. Bambridge say ?
Solas. He asked, whether I was sure it. was
an amethist ; I told him yes, I was sure, though
it was paler and appeared clumsy; and then
Bambrid<;e said he was glad of it, and asked
me whether it was not worth while to put it iu
a ring.
L. C. J. Did you tell Mr. Bambridge of
the value of it ?
Solas. 1 cannot be certain of that.
Mr. Filmer. Did he say any thing of the
ring ; whose ring did he say it was ?
Solas. Captam Douglas said if was sent
from a mercliant.
Mr. Filmer. But did Bambridge ?
Solas. Not at that time.
Mr. Filmer. Did he any time after say
whose ring it was ?
Solas. Yee, he said it was a ring of Mrs.
Berkley's.
Sol. Gen. You say you took the stone out ?
Solas. Yes.
Sol. Gen. Did you set it in again, after yon
had taken it out ?— 5o/as. Yes.
Sol. Gen. Should you know your own sett*
iDg, if you should see it ? — Solas. Yes.
Then the ring being produced, and shewn to
him.
1
Sol. Gen. Look open it, is that yoar own
setting f'^Solas. I am positive it is my seltinf
«07]
3 GEORGE II.
Trial of Thbntas Bavibriclge^
Thtn ftBOtberriog wm prodoced, and sbewn
to him.
Sol. Gen. Do you lake that to be the same
tftone yoa then set r
Sola$, It is one f set for Mr. Bambridge in
litis ring, but nok the same Ktooe he then
brouffht, or I suppose it might he new polished.
Sol. Gen. How many rings did you set for
Mr. Barohridge ? — Sotag. Two.
Sol. Gen. nhat were the value of them ?
Solas, I set one for Mr. Bambridge worth
fifty shiUings, and another worth twenty shil-
lings.
Sol. Gen. What might be the price of that
you set for him, he told you he had from Mrs.
heMeyf^Soliis. About twenty sbillinjgs.
Sol. Gen. Had you no other ring brought
you?
Solas. I had one brought from Mr. Bam-
bridge by doctor Coltheart.
^ Sol. Gen. What was it ?
* Solas. It was a garnet, with a brilliant in the
middle.
Sol. Gen. Whom did you say it was brought
fromf
Solas. From Bambridge, by doctor Coltheart.
Sol. Gen. How do you know that ?-
Solas. He sent his service. Doctor Col-
theart and one Will that keeps a coffee-house
came to me, and desired to know the value of
tL ring with a garnet, and a brilliant in the mid-,
die. I sent biro word it was worth fourteen
pounds ; then Bambridffe sent for me to the
coffee-room, and desir/^ato know the value of
it ; I said it was worth tbiirtcen pounds.
Sol. Gen. What did he say ?
Solas. He said, be thought i had valued it
for more than it was worth.
Sol. Gen. Did he tell you whom he had the
ring of? — Solas. No.
Sambridge. My lord, I am so unhappy,
though so much concerned in this affair, as to
be at so great a distance, that I don^t know one
word the witness has said, so don't know what
questions to ask him.
Solas. If you have any questions to ask me,
I am ready to answer.
Mr. Kettleby. You need not ask any.
Bambridge. Do you know the ring that
was brought to you by doctor Coltheart, when
you see it P
Solas. Yes, I am sure I should know it ; I
kave had it three times in my hand ; one time
you shewed it me, with Mr. Burgess, and asked
me the value.
L. C. J. You say that Bambridge had the
ring, what use do you make of enquiring into
the value of the ring, as to th« one of them be-
ing worth fourteen pounds, and the other
twenty shillings f
Att. Gen. The statute requires a particular
▼alue ; besides, we make use of it to shew that
Bambridfe was endaaf oaripg to sell then by
a private sale.
Mr. Just Reynolds. Were these offered on
AclwUlf •rfiambiidfita bt Mid, orlo kftow
^ miff
Solas. Only to know the value;
know the value, afterwards he a
himself to value them, having sen
fore by Coltheart and Will at the cc
Mr. Willes. The use that we m
is, to shew that the ring with the
the middle was worth fourteen p
only valued as a crystal, and not m
the inveutory at all.
L. C.J. I thought it was ; give
inventory, (Which was done ;) a
upon the inventory, there are twi
seals set in gold, a crystal stone, a
with one small emerald, and anot
small garnet.
Mr. Just. Reynolds. This is the ri
crystal ring, which Solas says, wh
to him, he thought to be a garnet.
Turner being set up agaii
L. C. J. Was that small garnet n
the inventory as a ring?
Turner. No, my lord, it was a 1
otherwise, after mentioning tiiat cr
ring, if the garnet had been a riu(
have said ditto.
Jacob Mendez Solas being set up
X. C. /. This garnet was broug
Mr. Solas, set in a ring, with a bril
middle. Was it not ?
Solas. Yes, my lord.
L, C. J. Was therf any other gvt
diamond in the middle?
Turner, My lord, 1 saw no such
Mr. Howard sworn.
Att. Gen. Did Bambridge lod^
house? — Howard. Yes.
Att. Gen. Where do you live ?
Harrard. In Bell Savage Yard.
Att. Gen. What do you call the
Howard. WilPs coffee-house.
Ati. Gen. When did Bambri
there? — Horvaid. Twelve mootlis a
Ait. Gen. How long before the s
made? — Hozcard. I can't tell.
Att. Gen. How long did he lodji
gcthcr? — Howard. About twelve m
Ail. Gen. Did he lodge there
1727 ?'^HoTtard. Yes.
Att. Gen. Do you remember tl
any qroodsto your house ? — Howarc
'Att. Gen. What were they f
Howard. 1 can't tell.
Att. Gen. Were they houshold
wearing-apparel ?
Howard. I do not know any
were brought in but his own.
Att. Gen. 1 ask vou if any g
brought to the house .^
Howard. They were.
Att. Gen. Do you know what the
Howard. I did not sea thenii
brought in trunks.
Att. Gen. Did you know of any
to ona Mr. VieAf-^Homard. Ym.
609J
Sor Felony*
Alt, Gen. Recolltct what they were.
H^mmrd, There wai a gown aod peldooat.
Ait.Oem. Wat there one or two?
HtmanL I cannot tell.
Ati. Gem, What were they made of?
Howard, I cannot tell. . *
Ait* Gen. •Did yoa see them?
Hcmard, 1 just looked at them.
Mt, Gen. Did you know what sort of
Mka ? — Howard, 1 did not look at them.
Alt, Gen, What were they sold for ?
Boward, I heard Air. West say, Mr. Bam-
Wi|e bad a gold watch for them.
AH, Gen, Wliat were they sold for ?
Boward, They said they were sold for four-
IM or fiUeen pounds.
MU Gen, How do vou know they were
M? — Howard, J heard West say so.
Ah, Gen. Do you know nothing but what
Wot told you ? — Howard. No.
Au. Gen, I ask you if yon were present
Mr. Bambridge, or any body for him,
any bargain as to the selling any clothes?
Btmard. 1 was not at tlie making the bar-
pii.
Mt, Gen, Were you present at the time
then tfa^goods were*deli?ered to Mr. West ?
Homard, I know nothing further, than that
1 9kw Mr. West hare them.
Au, Gen, Have you heard Mr. Bamhridcpe
telk of selling the goods, and what he had tor
them?— Hovoyc/. No.
Att. Gen, Do you know of any gold lace ?
&Kerd. I saw some gold lace that Bam-
» Mre bad.
Att, Gen. At what time was this ?
Boward. About October, 1727.
Att, Gen. Was it brought into your house ?
Bmerd Yes.
Au, Gen. Vou saw Barobridge have it ?
Boward. Yes.
Att, Gen, Who was that sold to ?
Barnard, To one Mr. Harris.
Atl. Qtn, Huw much was tiiat sold for ?
Bcwiird, 1 donU know.
Alt. Gen. How do you know it was sold ?
BiOKard. I know *]\Ir. Harris bought it by
b'a bringing money and paying it to A]r. Bam-
Att. Gen. How much was it ?
Btmard, I don't know the sum.
Att. Gen. Wliereabffuts was it ?
BowMrd. I don't know.
Att. Gen. Did you see the monpy paid ?
BotPard, I saw it lie on the table.
Att. Gen. Was it {jold or silver ?
Bntard- It was both.
Att Gt n. Was it ten or tw enty pounds ?
Boward, 1 don't think it was so much us ten
•twenty pounds.
Ait, (ien. You saw the money paid ?
Bowerd Yes.
Att. Gen, What was the money paid fur ?
BcKord, It was paid for the lace.
Ait, Gen* Why did you sny for the lace ?
Boward. Because Bambridge sold hiui the
VOL. XVIL
A. D. 1729. [610
Att. Gen. Do yon know from whom that
lace was brought? — Howard. I don'^ know.
. Att. Gen. What time was it, was it about
October or November ? — Hoamrd. Yes.
Att. Gen. Did you see any tea-spoons?
Howard. Yes.
Att, Gen. Were they gilt ? — Howard, Yes.
Att. Gen, Whose possession did you see
them in ? — Howard. Bambridge's.
Att. Gen, How many were they?
Howard. Three or four.
Att. Gen. Were there half a dozen ?
Howard, There were not so many.
Att. Gen. Do you remember Mrs. Corbett'f
buying any thing? — Howard, No.
Mrs. Howard wrom.
Sol. Gen. Are yon the wife of the last wit-
ness ? — Mrs. Howard. Yes,
Sol. Gen, When did Mr. Bambridge Uto at
your house ?
Mrs. Howard. 1 can't tell directly.
Sol, Gen. Was it in October 1727 1'
Mrs. Howard, ft was thereabouts.
Sol. Gen, Do vou remember any women'a
clothes that were brought to your house?
Mrs. Howard. Yes.
Sol. Gen. Do you know whose they were?
Mrs. Howard.' No.
Sol, Gen. Who brought them into yoar
house? — Mrs. Howard. I don't know.
Sd. Gen. By whose order were they brought P
Mrs. Howard. I don't know.
X. C.J, Who brought (he clothes in^ to
whose use were thev delivered ?
Mrs. Hoomrd. To Bambridge's.
L. C. J. Who were they sold to?
Mrs. Howard. They were sold to one Tho-
mas West, by Mr. Bambridge.
Sol Gen. What was paid for them ?
Mrs. Howard. I can t tell exactly the sum*
but a gold watch was given for them, which
Mr. Bambridge had.
Sol. Gen. Do you know the goods, can you
describe tliem ?
MiS. Howard. Yes, one was a blue and
white sattin ^('wn, made up ; another was a
worke'l govvh, lined with a cherry-coloured
lining.
Sol. Gen. What was it worked upon ?
Mrs. Hoicard. I can't say whether it was
holiandorsilk.
6o/. Gen. Do you remember any other par-
ticulars ?
Mr<i- Hansard. Tlirro wrre a black hocKl and
a scarf, with black lace round thini ; there was
also u ui>p(.t.
»SV>/. Gtn. What was the tippet ?
M's. Howfrd. S:»M«'.
Mi* .Inst. Rct/Ti)/Js, 'i'iicre is »ome stitched
enitipii lir\ . part of a gown, takru notice of in
the in<l:("ni; nt.
S<u. Gen. Tbey w^rp all sold to West, were
they •"»' • — V'^. liutcurU. V* s.
L C J. linl > ' •• I***!* 'h»fin sold ?
Mr; Ilo, ntd. \^.
L. C. J. Did \vcrfi pay for themf
611] 3 GEORGE IL ^ Trial of Thmas Bambridge,
IMn.^oward, Yet, be gft?e a gold watch L. C. J. What the king's eounse
for them.
L. C. J. Was there anv thiog else, had
Bambiridse anj money beside ?
Mrs. Howard, I caonot tell of any thiog bat
the gold iratch.
Sol, Gtn, Were there no other things ?
Mrs. Howard. There were tea spoons.
L, C J. Had thej any mark opon them ?
Mrs. Howard. I can't tell.
Sol, Gen. Were they sold ?
Mrs. Howard, Bambridge offered to sell
them to me.
tSol. Gen. Do you remember any gold lacef
Mrs. Howard. No, bat I remember some
silf er lace takth oflfthe blue sattin.
Sol, Gen, Was that sold ?
Mrs. Howard. Yes.
Sol. Gen, For hew much f
Mrs. Howard. For 4/. lOf.
Sol. Gen, Who receited the money ?
Mrs. Howard, Bambridge received the money
of Harris.
Sol, Gen. At what time were these goods
sold?
Sirs. Howard. West bought them all at one
time.
Sol. Gen. Do you know the time f
Mrs. Howard. 1 cannot justly tell the time.
Sol. Gen. Do you remember the month or
year?
Mrs. Howard: I do not.
J|f r. Willet. Did Bambridge tell you whose
the Uce was ?
Mrs. Howard. He sold them as his wife's.
Sol. Gen. We must submit it to your lord-
ship here.
L. C. J, The king's counsel hare now done,
what have you to say ?
Bambridge, I did not hear what the last wit-
ness said.
L, C. J, She says, you sold a g^wn of blue
sattin, flowered, to one West, as your wife's ;
she says, that one Harris bought the silrer
lace ; that the tea spoons were offered to be
sold, but she does not know whose they were.
Now they hare done, what have you to say ?
Bambridge, As to my def'ence7 I shall give
3'our lordship but little trouble. After the
general accusation brought against me; and the
clamour it has made in the world, 1 don't tind
that there is any thing answerable to it, or any
thing brought to the point; the gentlemen
have not proved any felonious act against me,
any thing fraudulent, or any misbehaviour
whatsoever. If there was any thing necessary
to justify myself it), by ffivint; an account of
my conduct in ray office, 1 might do it fully ; I
have the proper officer here ready to do it ; but
as I see no necessity for it, I will not trouble
your lordship, but submit it to your lordship
and the jury.
L. C. J. Tlien you will rest it here. — Gen-
tlemen of the jury, —
Bambridge, J must desire one favour of
your lordship, that if any matter of law shoold
arise, you wijl let that be reserred.
▼ery right, whether it was a fair dist
whether it was only the colour of a
with any felonioas intent : the attorney-
has stated that very clearly, that a m
do a lawful act felonioasiy. If this w
with a felooious iuteot, then this will be
yet if it was not done with a felooious
this will not be felony. This was tli<
point laid down by the gentlemen, i
jury are to judge with what design thes
were taken away.
Gentlemen, the first witoe^ for th
who was John Turner, savs, that tlie
taking those goods was wliilst Bambrit
warden, and that Pindar was. chami
and ihat Bambridge ordered this Piuda
train the goods of Mr?. Berkley ; and i
time of distraining these goods was 1
the 2Sd and 27th of October, 1727. t
gentlemen, that Bambridge was not the
present; and that she, 31 rs. Berkley, '
out of her room. After this, Bambiidg
to euquire into this affair, to see u hat w:
Mra. Berkley being then on the comiui
and he sent down somebody to caU her
having locked the door. The goods,
men, were as much under her key as
bridge's : Bambridge, I must tell you,
one padlock, and she locked the door,
on another ; and when she refused to o
door, he caused it to be broke open, and
the room. There was, gentlemen, an
tory made by one Turner, who had f<
inventoried gcofls, and was usually sen
such purposes : he says, gentlemen, he
orders to undervalue the goods: Tnn
sent for by Pintlar : he valued all the pr
the bed, bedding, ^c. and as to the box:
were not then 0[>eued : he did not see wh
was in thera ; but put them in gross in
ventory . Bambridge, gentlemen, cominii
after this affair, on the 3d or 4th of Xo^
sent for Mrs. Berkley to come up; ai
Berkley came up accordingly ; and Uvik
have the use of her key, which she r
and said, I think you are going to r
Upon that, Bambridge, before her, sent
for the hammer, to have it to open tli
but it would not do ; and then he sen
for the poker, and Barnes forced open tl
and in they went, Mrs. Berkley alon
them. Bambridge asked her for the
her boxes: she said, he should have nc
and asked him, by what authority he
he said by authority of warden ; and Ban
theu ordered the boxes to be broke open,
he had opened the boxes, Turner was sc
he was to perfect the inventory, that
part before made. 1 1 w as opened by th
sel for the king, that it was a fragdal
ventory ; and they, to make this appea
ly to be fraudulent, told you the goo<
set down otherwise then they really
There was put down, they said, dimity
sufficient for a gown, or what it was
said, there was a flowered blue aAd whiu
^J
far Fftoni/.
A. D. 17::9.
BW
iliai was Bclnally maile U|i, put down only as
■nfficiirol : B* to ihe dimity ami silk, that had
tmitn i>y«vl, and Tunii-r saiil, that it wa* rolled
up ; for lliese bad been at llie dyer's, and were
Dal |nit duH-n M a fova ; bJt Ihat lie hnd sat
Ibeiu doivn iiroperly, as iie thougfal : but ivben
he came to tlie Dowered gown, vrliicli wbb made
up, be niailc loaie difficulty in putting lliat in
dnhiTEiiiory, and said, that It was not luiial
b ^l ttiem in diilreses ; for this was tvenriii^
■^el. And It was prored, eentlemep, by
<■ of the iritnesies, tbai Mrs. Berkley said, it
m feloDy : this, ^eiiilemen, raig;hl caution
Tnnicr; be said it was tint usual to put such
tbion into Ha inventory lor a dislreis. Then
BoBibridfif said, if he would not put it in so,
bemmi ]>iit itilo»n«o many yards of flowered
idk, lutlirlent to mahca gown and pellicoat.
The ditli.ully arose from him«eir, and nol
ftT.iu iIk drfeodsBl. He should not liave meo-
U<ni-<! it silk sufficient fnr a gown; be was
»iLL'dii%oor three times, and Mr. Baiobridge
•111), It inu9[ all be in (be inventnry
o this
viil^nce of the aflair:
Thi!
tr: you
r wlietber it is so Or not. Tlieo
llii ■' t|yiii;'i were all looked orer i and Turner
uj", III. V "ere all put into the inTenlory, and
lH)[irair>t prl piil into a portmanteau ; but
IbtR ««re some few tbin^, as tea-S|iooiis,
Mb, aod rings, that were put into Bam-
Wgf's poi'ket ; hut though he put Ibetn inl'i
fail |iiitki-t, iJLey were in llii: inventory ; and
lliri ii,i,i.inr}', in ibe whole, came to 30/, and
■' ' 1 " ii i-rougbl down to 371. He anys,
•■:' I ■:.••:,, iliat there was a brush thatwas
(.u^-iii,;,,! ; and Bambridge, upon seeing It,
■U. Surely there must be some diainnnds;
MJnbesearcbedfor them, and. in makio^
Uiearcb, be found a piece ul'ps|«T: the
^owaiBjii, gentlemen, it was aoaie decree,
^T.:, \, n.jm)^ridee took in his hand. She said
lliiii'.i .i-i'. You won't take the pajiers too?
'> - < ' i,< . I will; and il' 1 Rnd anv bonds
'■■ i.il-.. i " Hi make bold with them. He says,
iti, that Bambridge took tlie bed and
t away, and ulfured lier another bed ;
w aatd, the would not lie on it ; then she
n tolheoommonside. He says, that
d Tcrj much ; that she was disordered
ai, aod talked of lord Hareourt. This
»UDt citen of her. He says, genlle-
t Sifflbridge sent for Iter wben the in-
t wai taken; and he says, that she was
jMiiflnii'a)! tbeiitne: though he look these
ftlll]l»|^, yet she could uul be defrauded in
iiDer,1>eGiii8e tbey were put in ibal in-
1 must giie you an account of the
t of ilie people, as tbey are examined.
I^eutlecnen, says, ibal Bambridge ex-
M ritii her about the chamber rent that
', nhieh was sal. and said. Why do
• BM p«yit? I am informed thai you are
>trj capaliUr: lb« woman said, the house was
ll.c kiug'i. and the king ali
kmuc ; aiij ItBtnbndi^ abid, he would do her
' « |i« could. Gtmilemen, "
by Turper, that be did appraise llieee gooda ;
tlial he did appraise them tnirly ; and tltat he
was employed by Pindar, who was iisetl In em-
ploy bim. Hesnid, gentlemen, thai the first
time a real oonslahle was (here ; and the second
time the constable was a real constable, aurl
be swore him ; now thei* was, inileed, Pindnr
pressed by Bambridc;e tn assist in the a|i]iraJao-
mcnt, who did not at all understand it: lie wai
a distiller, of a quite different trade. He says,
gentlemen, that Bambridge did desire Airs.
Berkley to send to her friends to pay the rf nt.
This, gentlemen, is the evidence given by tlii«
man. Another wimess, gentlemen, is ouc Wil-
kinson : he gives an account that he knew Mrs.
Berkley, and where she lodged, and that be was
a prisoner there himself: be spoke nf Pindar nnd
Barnes, who were there the last time of tiia
coming. Hesajs, that (hedoor was broke open,
and that the padlock was forced off by Bain-
bridge's order : he says, that Pindar fetched the
poker, and Bambridge ordered Barnes to break
open the door. He says,' gentlemen, be was
sent to call Mrs, Berkley from the common
side before this was done ; when she came up,
she was asked lo part with her keys ; bul she
refused ; and then the door was broken open-
He says, gentlemen, there weie two boxes
locked, and one nailed ; and Bambridge ankpd
her for the keys of her boxes ; but slii^ refused
lo deliver tbem lo him ; upon which Bmnbridgc '
broke them open ; and ttiot Mrs. Berkley was
all the lime there, and called it a rubbery.
He says, that ihe things were luken away by
Bainliridge's direciiotis; and that she, Mrs.
Berkley, said, thai the taking away her wear-
ing apparel was lelony. He says, gentlemen,
be was ordered In Uike the bed and bedding,
and carry it ioio the lnniber-ro«m ; thai aOer-
wards it was taken front thence, and carried lo
the water-side, to be sent to Wandsworth.
There were several sma)! things, bs an emeiatit
and garnet, and some other rings, one of them
las, lo see that be put them into hia pocket, f
fear they should be lost. Now, getillcmcn, he
'jys further, Ihc wearing apparel (whicli was
rich,} and such things, the prisoner put into the
portmanteau, and ordered il In be carried into
the lumber-room ; and other things ivere car-
ried lo Will's colTee-house; aod the prisoner
said, he seized for rent, and would stand by il.
What he says farther, in relation taMn. Berk-
ley, was, that she was tticre all the lime, anil
frequently complained il was felony, and U
rubbery ; and says, (hat the gnuds were rc-
movcif, tome at one time, and some at another,
in the day time, not roucealediy. This, gen-
tlemen, is the substance of hia evidence .- bul
he says something further, ibal her bed Iwing
gone, she would not continue in the room.
Burvess, be says, tbey had called her up :
he siiulie tn the last time of ihcir being in the
room, about fourteen days aUer the 33d of
October. Ue aayi, b< went up sooo aflcr tbt
619]
4 GEORGE 11.
Proccedinfrs relating to a Charge
[6S0
488. Minutes of the Proceedings of the Committee, appointed to
enquire into the State of the Gaols of this Kingdom, touching
a Charge against Sir Robert Evre, knt. Lord Chief Justice
of his Majesty's Court of Common Pleas, for personally visit-
ing Thomas Bambridge^ late Warden of the Fleet, whilst be
was a Prisoner in Newgate, under a Commitment of the
House of Commons, &c. &c.* : 4 George II. a. d. 1730.
At the Speaker^s Chimber it the House of
Commons, at the Committee appelated to
enquire into thcj State of the Gaols of this
Kingdom.
Edward Hughes, Esq. in the Chair.
Saturday/, April 25, 1730.
1 HE Committee having received several
Letters and Informations relating to the fore-
going Charge, proceeded to examine a great
number of witnesses in the most solemn man-
ner relating thereto ; when the several follow-
ing Letters (except No. 5, directed to Francis
Harbin,) were sent under cover to Edward
Huglies, esq. and being produced by him to
the Committee, were read ; which Letters, as
they seem intended for an intrmluction to the
Charge, and as they relate to some of the fore-
going Trials, are here inserted.f
The several followinor Letters (except that
directed to Francis Harbin) were sent under
cover to Edward Hughes, esq. and produced
by him to the Committee.
N^ T.
'< Sir ; my supposed attachment to the inte-
rest of Mr. Bambridge, cannot, I am sensible,
but have prejudiced me in the opinion of all
good men, and therefore, l>efore. Sir, 1 offer my
senice to you, and to my country, it may not
be amiss to say something of the motives that
at first induced me to fall in with his party, and
also of those which have since determined me
to quit it.
«* After the Report of the late Committee, 1
will not presume to say, 1 thought Mr. Bam-
bridge innocent ; but, I confess, I looked upon
him to be far less cruilty, than since, by exa-
* See the preceding Cases.
f " These Letters, &c. are taken ft-om the
Proceed inprs, Sec. in this affair, as drawn up by
Mr. Luke Kenn, to be laid before the House of
Commons. The whole proceedings are long,
being about 142 folio pages, wrote close, io a
small round hand ; so we have taken only so
much, as may nve some light into the Charge
relating to the foregoing Trial, &c."— fbmifr
Edition.
mining his own aide only of the question, I fiii4
be is ; the atrociousness of bis crimeB took off
to me much of the probability of his oommittiog
them ; and it was nard for a man who bad any
virtue himself, to believe there was another it
perfectly abandoned.
" Mr. Bambridge took all the opportunitiei
he could, of saining those he thought might
be of use to ois party ; amongst the rest, be
applied himself to me. I confess, at first, the
art with which he palliated his offenoea, de*
ceived me ; 1 went heartily into hu concenii,
and did all for him in my power, as for a man
struggling against the current of the times;
but as I jn^ew into his confidence, the mask was
taken ofl^and 1 found the use he intended ts
make of me, was not to assist an oppressed
man in his defence, but to screen a guUty per*
son from his just punishment, yls to the per*
sonal injuries I have received, (and surely no-
body has received more) 1 forbear to meotioa
tliem, since my private pique shall never add
an edge to any informations I may hereafter
give you. 1 am weary of the part, Sir, which
hitberto I have acted in this affair ; it is with
fileasure 1 quit the side of artifice and dissimu-
ation, and with joy I enter into the service of
truth, and of my country. I heartily beg par-
don for any faults 1 may already have com-
mitted, and assure you. Sir, it shall always bt
my study for the future, to testify by my ac-
tions, as well as words, how much 1 am, SiCy
your faithful and devoted humble servant."
N*. II.
<* Sir ; the last time I did myself the honoor
of writing to you, 1 promised to give yon ail
the informaiions in my power, that might any
ways tend towards carrying on, with effect,
that generous enquiry made by the late Com-
mittee of the House of Commons. In pursu-
ance of which promise, give me leave. Sir, to
lay before you certain observations, which,
though at present little more than conjectars,
yet are such as I despair nut, by time and ap«
plication, to produce the strongest evidence of
their truth.
<*The late warden, Mr. Bambridge, not-
withstanding all his vanity and raabnesi, eoul)
never have been capable of so much folly, aa In
have committed so many notorioin offences in
631]
againtt Lord Chief Justice Eyre.
A. D. 1730.
[6«
offioe, if he had not presiimeil on the inte-
rest of lonie superior power, which (at least as
he fancied,) might ho able to prevent any en-
quiry into his conduct ; or if that hy no arts
were to be eraded, vrould at last screen him
from punishment. That this presumption of
his was but too well founded, 1 am apt to be-
lieve is pretty apparent ; the behaviour of a
eatain Court, when complaints were made
tfHMt him ; the difficulties there were in pro-
caring rules, on the plainest proofs of the most
i^pint oppressions ; the ambiffuous terms in
vUch such rules were generally drawn up;
ifae little regard he paid those onlers, when
KTvcd upon him, and his impunity, notwith-
ftaadiog such disrespect, are arguments which
aiDOont almost to a demonstration of his being
ia oonfederacy with a certain person, who, no
Mbc, took care to receive from him an ade-
fMle ntiaiaction for such favours.
**Bot as a correspondence of this nature was
•fiaUj criminal in the receiver and giver, it
CMMOt but be supposed, that the utmost cau-
tin was used, in order to the carrying it on
with inpenetrahle secrecy. But when the
Hwse of Commons thought fit to imprison
Bmbridge, a third hand necame absolutely
HMsnry towards that purpose; and from
iW&ea so much light has been let into that dark
ifiir, that by degrees I no way doubt, but that
t Krftet discovery may be effected. I will
wy beg leave to add one tiling to this long
mr, aad that is, that although vice be conta-
giBM io its nature, aud that I have long con-
vened in intimacy with Mr. lUmbridge, yet, if
1 kaoir my own heart, I will venture, Sir, to
Mre you, there is nothing I so much hate as
^isioi^enuity ; and that, for the future, I shall
kt idp no (Opportunity of shewing ivitli how
oioeb tincerity, I am, Sir, your faithful aud
devoted bumble servant.'*
"AW. 1«, 17^9."
V. 111.
'*S!r ; having, in my former, luitl before you
lliose reasons which induced me to believe a
^rretpondence between Bunihrid<):e and a cer-
Uin pfreat man, at whom I have already point-
ed ; I now beg leave to add such facts, as have
^ III)' time come tu my knowle<1^e, and which
tttm to confirm it. I*irst, Sir, give uie leave
to observe, that Han)*)rid;j|;e, in regard to his
*spfooes in private life, has, bince his iuipri-
Mnentf been very much straiteLed ; but
*bere omnsel, or any thing elac that was ne-
ccinry towarJ^ his defence, was wautiii^^, mo-
^ has not only been expended, but lavisheil.
I uy the more stress oti this, bt>causc in some
ivipect, it fails within the circle of your own
ewervance. When Mr. Bumbridge attended
^ at the House of Commons, his counsel was
Haied to say for him, that the present nar-
iMiBiBS of bis circumstances obliged hiin to
i^iearwiUi bat one counsel; but since that
Inatleas negociatioo, in which through his aits
IvMwuDliicky to become an agent, we have
"^^ a Tcry different turn. The Courts of
Chancery, King*s-bench, Common Pleas, and
Old Bailey, have all in their turns been crowd*
ed with orators in his favour.
" The lowness of his fortune at the time of
his coming to his office at the Fleet, is notori-
ous to the world ; and though I believe, as to
getting of money, he can by no means be
charged with being idle ; yet, (if even the most
extravagant calculation shouhl be admitted) the
shortness of his stay there could not but prevent
his acquiring half that sum of money, which
has been already expended in defence of these
prosecutions ; add to this, that his own crea-
tures have imprudence enough to mention this,
as the strongest part of what they call a fbrmi*
dable interest, and that I myself''^ have seen his
clerk deliver a letter to that great man, io
Westminster- hall ; to which his lordship said,
I thank you. Sir, I am obliged to you, Sir, or
words to that purpose.
" But that which has given me the strongest
assurances, and such as I littpe^ will one day
terminate in the clearest evidence, is the con-
versation 1 have had with one Mr. B. who is
himself perfectly intimate with Bambridge,
and whose wife has given very extraordinary
instances of her attachment to his interest.
This gentleman, though he still owns the
greatest friendship to him, yet has confessed
to me, that to his own knowledge, Bambridge
had it in his power to that great man,
(that was his expression,) not only in res|>ect
to things done as to the office of the Fleet, but
in other respects also ; and that he was sorry
Bambridge was not to be persuaded to give
him up to justice, which might be a means,
not only of saving himself, but would also make
some atonement for his faults. He promised
me also to make so strict an enquiry into this
affair, as to furnish me with a clue, by which
might be unravelled this whole work of darkness.
For this purpose I was to have met on Friday,
but something havini; intervened, he has put it
off till Tuesday next, till when 1 should have
delayed this letter, but that I was impatient of
giving you some further proof of that sincerity
with which, I am, Sir, your faithful aud de-
voted humble servant.''
" Nov, 13, 17Jl>."
N" IV.
»*Sir;— Mr. Harbin having aceuaintcd me,
that he intended to make ^<»u a visit, 1 wa.'>
uuwiliing he should go without carrying with
him this, as a mark of uiy duty and respect,
especially so reinarUahie uu evfiit (I s;M*:ik with
regard to the prosecution) as the acquittal of
Mr. Bambridge havini^ happeiu-d since your
going down into the country. I do not pn*-
tend, Sir, to give you an exact detail of that
extraordinary alfuir, the public prints havini;
doubtlt^Ks, and probably a munuscript copy of
his trial, may loii«; ere i:ow have reache«l your
haiid.>; all I kIiuII endeavour, will be by a
short otiservatioii ur two upon it, to give yiMi
some light into the means by which that uu<'\-
pcrted event was brought about.
623]
4 GEORGE II. Proceedings relatiig to a Charge, S,c. [6U
" It is tvreed, on all band*, thai a legal dis-
tress for nrrnt is a very innoceat as \\ t\\ as a
law fill action; bat ir, under cdour of such
distress a person comcn, and, with a felonious
intent, sttuls and carries away (roods, the pre-
tence of adistiefes viiil be so far from exteouat-
injc, tliatit uiil heighten the uflTeiice, since it
it done infiaudrm Ituit : iiud the laiv, vrhicb
i» intended to preserve and to protect the pro-
perty of the subject, is thereby luaie a means
tu destroy it.
*' A feionious intent is only to be proved from
the actions of hiin uho commits the fact ; and
the first indictment, for the murder. I do
not find, from Codnor, that he has any affi-
davits to sapport this motion ; or at lust, if
he has .?nv, he has not trusted him with
them : However, am to see Coflnor t!ils even-
ings ; and if any thin;; material shoald oocvr,
shall leave a line, «u that voa may have it veiy
early in the uior!;in:^. f find he and all ks
party are very ulert at present ; and are so Ux
from being* apprehen^ii e. from the present tem-
per of the House of Commons, that they, on
all occasions, treat the late Committee with tba
utmost in<:o!cnce and contempt. However,
that such an intention nctiiated Mr. Bambridge j there is little likelihood that his assurance will
in this extraoidi nary seizure,is pretty apparent, | be able to defeat the united endeavours of those
from the two following circumstances which
attend it.
" Turner, the person employed by Blr. Barn-
bridge as an aiipraiser (ihou^^h a prisoner and
a creature of ins own), yet thought fit bambly
to represent to him, that be bad never seen ne-
cessary wearing apparel distrained before (as
indeed by law it cannot) ; upon which jir.
Bambridge ordered him, in talcing the inven-
tory, instead of settinpf down a gown and pet-
ticoat, as the thing really was, to set down silk
■nfficicnt for a gown and |>etticoat ; and made
iise, in several instances, of the same ailifice :
A thing in itself so plain and flagrant, that
even Mr. Bambrid^e could not find out an eva-
sion ; but in that he was kindly helped out by
the bench ; from whence in summing up the
evidence, it wvl^ declared thai the appraiser's
was only an iillc objection, to which Mr. Bam-
bridge gave way, merely because he would
have nothiii'/ left out of the inventory.
•* Tlip orlKT was this : ]t was fully proved,
that Mr. I):iinlirirl*^e carrird away four rings
in his )if»rk<'t, though but one is mrntiuned in
the inventory, and that too is called a crvsta/,
though it was indeed an arnethyst. To us,
who were spectators, this appeared to have
a very great weight ; hut it seems it appeared
in a very difrf-renl h^'ht to the geniii>innn \\\\o
tried him, sincx* it escaped both his memory
and his noirs.
" llaufig twire mentioned that gentleman,
J cannot help doing him justice, (in this oc-
casion, by observing, that (however in other
resp.?tis hi«i enoniies may asperse his character)
there is one part of i\\p judire, in which 1
l>elicvc no man ever came up tu him ; 1 mean,
in iNfiiig counsel for the prisoner. I am
afraid I have lu-en already too prolix, and will
therefore lengtiiin this letter n(» further, than
to assure you, Sir, of my being, with the
utmost deference and respi-ct, your obedient
and devoted himihle servant."
" Dec, 20, 1729."
N"V.
*• Dear Frank ;— 1 find that Mr. Bamhridge,
howev(!r unlikely he is in succiH'ding, will un-
doubtedly move the Court of King^s bench for
judgment and damages ujHm the writ of ap-
|)eal ; and hopes great advantages from the
favour of the gcutlcmfto who tried him, or
gentlemen for the relief of the unbappy, I
please myself with hoping that all ww at
last go right, — I am, yours, 5cc.
" Feb, si 1720-30."
« To Mr. Harbin."
N^ VI.
" Sir ; Mr. Harbin having informed me, that
3'ou have been so good as to enquire after me, I
thought it necessary for me to excose myself
for not attending you, by acquainting yon with
the reason ; whicli is, that my bein^ seen at
the Horse-guards, as things stand at premt,
might be some hindrance to my entenng* uito
the knowledge of some tilings, about which it
is at present my duty to enquire.
'* There is 'another motive which indnced
me to give you this trouble ; and that is, that
you would be so good as to mention it to the
chairman, that as my time (the only thing va*
luable that is left me in my inisfortunes) is al-
most wholly' taken up in endeavouring to do ser-
vice to the present enquir}- ; and as it has in-
volved me in the hatred ot a party of the worst
of men, who let slip no opportunity of making
me unease* ; I hope it may not l>c thought un-
reasonable to give some directions for my re-
ceiving a mo(!erate subsistence.
'* I confess Mr. Harbin has been, in this re-
spect, very kind ; but as 1 have been hitherto
unused to ask any l>«)dy for every shilling and
sixpence that is necessary to^be laid out, 1 con-
ceive it would be for both our advantages to
have it put into another chnnnel.
" Before my e urging in this aflfair, 1 con-
fess, I used sometuncs to prepare some little
labours for the presii ; but as these are the em-
ployments of a mind at ease, in my present cir-
cumstances, it is no way in my power to com-
pose them. As this is a subject on which I
should ucver have prevailed on py self to s|>eak,
and on t\hich I write tvith the greatest reinc*
tancy, 1 ho|>e you will forgive this troubia
from your obliged and obedient servant."
" Thurtdtii/ Morning,^*
Tlie Committee thought it their duty to exa-
mine strictiv into an affair of so extraordinary
a nature, %vhen several persons appeared betbra
them, and endeavoured to make good their w*
veral informations.
Which persous, having^ been ezamincd be-
6SS]
Trial ofRiehltrd trandMiu
A. t). 1?S1.
im
Ibte the Committee in the most lolemn manuer,
nlatiiiff to the foregoing cberge, grossly preva-
ricatadio Uieir examinations, cootradicted one
••otber io eeveral material circumstances, and,
as to the fiustSy were falsified by |>enons tu
whom they referred for the truth of what they
had declared*
It likewise appeared to the Committee, that
dwcraof the iiaid persons were prisoners in New-
fMa,or the Fleet ; some of them of ?ileand infa-
warn characters ; others actuated by a spirit of
RKBtmeiity on account of causes determined
apinetthem before the said Lord Chief Justice ;
md all of them tampered with, and influenced.
It farther appeared to the Committee, that se-
feral of the said' persons had had meetioy^s and
emsnltations amon^themselves; and had been
foilty of divers evil practices, in order to set
sa foot and support the said charge against the
■id Lord Chief Justice, and the matters con-
lued in then* said informations.
After the Committee had spent several davs
■BSD the said enquiry, and hao examined all the
waacases that appeared before them, the prin-
d|Ml persons concerned in the conspiracy having
imsaa to apprehend, that the evidence ^iven
bj them to support the said charge, would not
bisaflfeient to impose upon tlie Committee, and
li sbtain credit to the said informations, did
fMsoh with a person to fix a new charge ufion
tbsmid Lord Chief Justice, not mentioned be-
fim u any of their examinations, by giving
•tifaoe of certain circumstances, tu induce a
Mrf, that about three days before the time ap-
MBted for the trial of the said Thonus JBam-
mkfjt for felony, in the last long vacation, the
Thomis Bamhridge did aend a letter to the
said Lord Chief Justice for money ; and that,
io consequence thereof, he received one hun-
dred guineas.
Whereapon the Committee thought fit to re*
examine the said principal persons, who liefore
had been examined as to the former charge,
who were not able to give the least colour of
evidence to support the said new charge, and
were flatly contradicted by the evidence to
whooi/thev referred; and on their examina-
tions the Committee, being convinced that tiie
said new charge was only a continuation of the
former conspiracy, on considering the whole
matter came to the follo\%ing Resolutions :
Resolved, That it appears to the Committee,
That there bath been a wicked conspiracy car-
ried on by certain infamous and pitinigate per-
sons, to vilify and asperse the character of the
riff ht honourable sir Robert Eyre, knight. Lord
Chief Justice of his majesty's court of Com*
mon Pleas ;
Resolved, That it appears to this Committee,
That the informations given to this Committee
against the said Lord Chief Justice Eyre, are
false, malicious, scandalous, and utterly ground-
less.
Th'jn resolved. That Roger Johnson, and a
great number of low, oiSinary people (there
named), were the persons concerned in the said
conspiracy. — ^To which the House agreed.
Thus this great man had justice done him,
in as honourable a manner as possibly could
be, and was cleared of so scandalous and in-
famous a charge. Former Edition.
489. The Trial* of Mr. Richard Francklin,-!" for printing and
publishing " A Letter from the Hague," in the Country-
Journal, or Craftsman, of Saturday, the 2d of January, 1731,
at the Sittings of the Court of King's-Bench, Westminster,
on Friday, December the 3d, before the Right Hon. Lord
Chief-Justice Raymond :']: SGeougeH. a, d. 1731.
JURT.
ho. Miber, esq. Wm . Tilliard, esq.
Tho. Moore, esq.
Philip Baker, esq.
Joshua Jackson, esq.
William Turner, esq.
John Wilson, esq.
Gio. Short, esq.
1W. Allen, esq.
Jacob Harvy^^sq.
Bee. Norria, esq.
Innel Tyasou, esq.
Mr. Tarker. My lord, in this canse, his
ftsjesty is plaintiflf, and Richard Francklin,
* ** Taken down in short hand, and tran-
aerihed into long hand, by Mr. J. Weston."—
Arawr Edition.
t See Fltz-Gih. 5.
t That grcAt aDiiely waa excited bv the pro-
iseetioo of Francklu, may be interred from the
VOL. XYII.
defendant. The in formation sets forth, that
before the demise of the late kin(>, divers dif«
ferences and controversies arose between his
said late msjesty nnd divers princes anil forei^pi
states, bring bis' allies, and the king of Spain,
concerning the public safety and commerce of
this kingdom, and the peace and tranquillity of
Europe; and that, pending such dinerenceis
to wit, the 30th September, 1725, a certain
treaty, betwixt the said late king, Lewis the
following passage in Boyer's Political State of
Europe:
"July IS, 173 1, was to have come on the
trial of Mr. Francklin, the bookseller, for print-
ing the Craftsman of the 29nd of Jan. hist. A
Test crowd of spectators of all ranks and condi-
98
"827]
5 GEORGE ir.
Trial o/Rklmrd FrancM'm,
French king, oud the king; of Prasiia, was
concluded and made at HnnaTcr ; anil that
■fterwanht, lo wii, the 9ili of November,
1790, io order Id compromiBe such difiereiices,
■Dd \a establish peace in Eurujie, a certain
treaty of [leace, iimon, amily, and mutual de-
fence, mil concUided and made, betwixi his
RiajeHiy king; Oeurge the Slid, and the snid
[Lewis the French king, ODd Philip V\d\( of
e salhered about the cnurl to lieur
Ihv said (rial, and the court W8« crowded wilh
noblemen and gentlemen, particiilarlr my lord
*VlDchiH«ea, my lord Balhursl. Mr. Pulteppy,
ir Uiilism Wyndliaro.sir William Young, ><cc.
tal nhvn the Jury came to be called, there
' n»re but 1 1 of ihe Qi ajipcared ; whereujiou
Hme debates ensuetl about adding one to tlic
jury, or calling a new jury ; [Sec Perry and
Latnberl'a Caiie, *. d. 17!)».1 at Insl the trial
iraa put olTtill iieal term, ft was remurknliie
that Mr. Pulleney, who i« presumed to be one
orthe|)atronaof (hat weekly paper, was loudly
luiKKa'd by the populace as he went out af
, Weslminslnr-bill. Which ahewa the fondness
k of the people of England fur ibe liberty of the
The prosecution gave rise to much eonlra-
twrsy in Ihe periodical publicalinus of the lime,
Ud 111 occasional pamplilcts. The publications
Vf Franckliu on uther occasions involred him
ntroohles. In the year 1729, he nas trieil
Ibr publishing "The Alcayde of ttetillp's
Speech :" but upon ihat trial be was acquitted.
In Ibe Commons' Journal of February 10,
1783-3, is the fallowing entry :
Mr. Youge, from the Coinmiltee appoinl-
0 enquire ililu the printer and publishem of
primed |>amjih1et, entitled, ' The Re|>ort of
the Commiitec apiwinted to exuiniuc into Ibe
Project, coinroouly called ihe llaKiurg Lot*
tery,' acijuabt«d the House, That Ricliurd
Francklin, bonkseller, iu Fleet-street, who, in
Ilia exniuinaliou before the said Committee on
Vaturday Itut, hod owned, that the said Itvport
tvas phuted by his direction, bating been since
•unimoncd lo attend the said Commitlee, in
his being further examined this mom-
ill^, had sent a Icller to ibe cbainiinn nl' ihe
flUdCoDUiiiltea, acquainting bira, that he would
not olwy the said summons.
" Resolved, That Richard Francklin, bouk-
r, hatiog refiiBed, when duly summoned,
itoattend aCominiltee of this House, is guilty
'"" • notorious uuntcmnt of llie aulhonly, and
a breach of the privilege nfihis House,
" Ordered, That the tiaid Itichanl Franck-
be, Ibr his said contempt, and brcarh of
lirivile^, taken into the custody ol' the lerjiniit
arras attending this House,"
From what occurs in the Journal, 1 uoiyec-
re tbtt this Richard Francklin was accord-
token into custody on or before the 3Srd
ih, and ibat he remained io such
jitorogued on
1 tbe uid Vinfi
>n also sets fom
II hnowiDg ilw pc«,
ouH, seditious, ul
this kiagdoa
stersufuat^
and miDMIM
lhat Uicba'd Francklin, w
misses, but being a malii
ill'dispoteil person, and a prrpelual aiii) i
gent publisher and seller of sedtiii
dalous libels, and disalfrcted t
majesty and his government ; a
malicioualy, and seditiously contriving ■
lending to disturb and disifuiet tb« linppy il
of the public jieace and trenquillily uf |]
kingdom; and lo bring his present inMMh ,
treaty of peace (which, with great afiecuoa M
wards his subjecls, and fur theailvaatagv j
Ibis kingdom, was uunoluded) into conlond
and disgrace among all bis hege sulijectta
ibis kingdom; and also to detract, scsudaliu
traduce, and vilify tbe adminislraljtui of h^
present majesty's gnvernmeot of this ' '" "' —
and bis principal olhcersaod n
and 10 represent his said officers a
of stale as persons of no integrity and ■!
ntid as enemies to tbe public good of'tliiabiai
dum ; and to cause it tu be believed, ibot b
said present majesty, by the ailviM oThiiM
trincipal officers and ministers, inleadad M
reak and violate the said treaty la "
lioned ; and thereby to raise and i
lierences and discords betwixt his said pmol
majealy and the said French king.ond kiogtl
Spain ; and also to spread false news and rtt^
mouTS coacerning the state of the public tAiit
oftliiskingdom;andtobringbissaidpre9eutnK
jesiy and bis admiiiistrelioo of the govenmni
of this kingduin, into suspicion and ill opntaJB
of his aud fiege snbjeclf, on the Sd of JanutiH
III the 4lh year of his present in^esiy's rd|>S
at ihe parish of Si. Paul's, Covent-gardeiwi^
ihccouuty of Middlesex, a certain fdse, iOM
dalous, and sediiious libel, [intitled. No. SSU
Tbe Cuuulry- Journal ; or, Ihe CraftiiBil?
By Caleb DUnters, of Gray's inn, nq. Sbj
turday, January 9d, 1730,^ wickedly and bm^
liciously did print and puhlisb, and caused laM
printed and published. In which libel, of ut
ctncerning his said present ra^esty kiBf
fieorge Ihe Snd, now- king of Great- BnUiaiJ
lice, and his administration ot tbe govemaMif
lit* this kingdom, and stale of Ibe puUic afiifl
of ihis kingdom ; and of and couceruing bi|
said principal officers and ministers at tlaw;
and of and concerning tbe said irealy, modi
lietwixt his said present nia^aiy and IIm «■
French king, and ibe said king of tipaio ; ud
alsouf and coacerning the said Freocb Idogi
the said king of Spain, and the most aaciM
prince Charles, cmpemr of Germany; M
contained (among other things) diier* liaU^
feigned, scandalous, sediiious, and nialieioM
matters, according to tbe teuor followuigi H
wit; " Extract of a private lelter from llw
Hague. A rumour Lntli been for some lill^
privately spread abuul, and begins to gii|
credit here, ibat a m is unders landing will aool
discover itself between the allies vl Seville ;'
(meaning bis ssid present majesiy, tit* a
French king, anil (lie Mid king of ^^) «
" l&cit
tm" (raeBniuK thi> niiij |irin-
<) minuletv ol' Lit suil niBJesty.
d tdUuslMl in ihril^aiculi affuirit
it l«n)ith Ifiund out, Ibut
tinioii with l^'tBiirc, tiiil » war
hp fuot of the ireoly nr Suvillc. ■« ijuiie
IgaioM Ihr grain of tile proptf. are enilenvour-
torin brinp About nn nccommorlstian with ll>e
(uperor, on*! to uniln ttvpry thin); (bey liitce
m ftuiiii; Tor tbcsp lirB yenni past. If tliis
riMili) proTi? true, ii will cprminly redound »ery
nadi to ili« honatir of lliose |<«iiilern«o, irbo
ton M> TiifornuHly oppoaeil tb« Inlc roeanurd ;
wjllit tniiii»tet'i, ifba have not only conorleii
mJ panmn) thvte inmureE, lull tnaifed all
mmUIud to IbeQi w illi the TouIfsI imiititiilians,
ttt be ohhv'ed la l^kea i;reat dealof shniiie to
llMMches; Tor what L-an be h Mroti^er lOn-
n of their own past conduct, or Ihe
gt of thoM whuni ihey bavp employed In
"^n thair cause, ihaa lo see thetn wheel
11 Od • BuJdcii, and p jraue measurea dr-
Uponte, iFhich have been [loiiileil oul lo
reral yesra tiig^tlier, liy ilieii' ad-
idfbr which they hare representeil
imen, in the most opprohrious
Cm factious iijcenji«rje8, Gernimiizeil
id EOeiniea tu Ihetr comilry P VVhal
i ridiculoiu than in aee them desert
riWhw«e|;ond I'aitb, ain eerily, and even
Ky of I'riendahip, ihey hate ao olUn ex-
~~'»t last run intolliearma ol' another,
IP tiaie so industriously set furlh aa
lithonourable, iiui-raiet'ul, aod per-
il prioceP They must have altered their
~' ""' is priuee rery much (it* lliia report
d seem lo rely ii|i"n his good-
tg lhea)«e)ie« ihus absiiliilely in
ir if tie sboahl reluse lo deal witli
m nngt he hath received they will
ball the courts uf Europe; anil
~ ) InSeiiaible of their perfidy to
: time ihat he is Irpalintr
ivill they be able Injiulify
1 cxpetices which il.cy have alreaily
" ~' ' ' , by an ubatiante
res, till the last
Wly, a« well as tlinse fartlier expcDces
'- =- which such a precipiiale alte-
Is, in Iha preteitt ciruumstances
II ciTlaioly inrulve it? Fur
I, which isnuwanjd lobe
, . , . certainly llie most
lie, whiUt ihfy remaiiu'd uiieinbarraise'l
n eii|ra([eiiiciii» cil'imolher kind ;andlhaiigli
il b« cnijlL'»rd 10 tie triy d«airnbli: at
*■, pMaDti y' il sctiiis lo he ftlleudi'd with »cry
***- nal tonacti ucni'i-t, and almost insuperable ilil-
^ fnrilHs. I'be pf uple, uf whom I am »peak-
\ 4g, bad their hauiU al liherlylite years uf^,
* ttd nijbl hare eulered ioio what iiieusures
'' kn pUaacd with ihe eiDperor, wiihoulciiing
'' Mun^, or Bay jusi reuuo of coinplaini, to
'\ i^Beatirta; bitt at present iJiey i-anoot dojt,
/ ■fekxHan uiliAciiuo of solemn treaties, and
I ira«W apou thair couutry tlie reseiilmeovt
inlerruptioD of trade and the at
pledt!'*, whith Spain hnili at this time in her
liaod- ; so thM the unly prelrndid ao"d ''ffuct
of ihcir former eunducl, inny he absolutely tlft-
li-Blnl bv (heir preMul seheiiie. Anulher ne-
oeswu-y effect (tiar so I think I may call il) of
Inch a meJiiure. at pre<ceii\, will be a cotijiinc*
linn of Prance and 8|min; ami a certain court
may hare the morliflcalion to see those two
crowns united against tfaem more sttouftj
Ihan erer, by Iheir extraordinary maiiagemeul,
alWlbey haveipeni so many mil liuut In pre-
vent il. I am far from designing to iDsiujila
finm hence, (hat an accommudation tritb tha
emtteror is a wroDg' measure ; ODibecuatrarya
I wish it bail been thought a right ineasura
Inoir ago. My own intemiou is to shew huir
difBcuil, ill my anprehenainn, the conduct of
■ome ministers halh rendered il lo their country,
Ds well as dishonourable to tfaemaeires, by car-
rying along with il the ceTerestcfnsureni' their
oun conduct, and ihe strongest jusli&catioa op
llieir adveraarie*, agaiiial all ihe aspersions
which have been cost upon them." in uun-
lempl ol' his said present nifljesly, and bi« laws;
Hod 10 the great disgraue, scainlsl, and in-
famy of bis Bait) present mnjesty, and liis ad-
niiniitraiion of the gorerDmciil of this king-
dom; tu tlie disturbance uf Ihe publiu prac*
and traui{uillity of this kini;dora -, to Iha eiil
example uf nil olliers, ofTcDdiDg in the Ilka
case ; and against Ihe peace nl' our said luiJ
the iciug, his ci'onn and dignity.
Aitoraes Gtiural. (Sir Philip Vorke.) My
lord, uuil genllemeo of the jury, I am counsel
for Ihe king. This b ■ piosecuiion against tha
ilefi?ndaol. Air. Franeklin, <or printing and pub-
lishing a scandaloua niid stditious libel ; an
offence (liuwevet il hath b<;eu treated of late
days) which ibe law cuntiders as a very hein-
oils crime, as it tends to disturb the peace uf
the kingdom, and lo bring into contempt tha
king's ad mini itrntion ul' the government ; aod
111 it tendi to create great jealousy and dinaiii'
taction in ihe miods of his maJestv'R subjects
•gainst his gnienmient; and, indeed, this is
the use you find made of it. The present libel,
for and upon which the defendant is ii> bellied,
will appeir to be a libel of that nature, and aU
tended Willi Ihe most aggravating circum-
alances nf any ever yet pubiiilied.
To ciptam' Ihu nalure of Ihis prosecution and
liliel, End to shew the connexion and tendency
(hereof, it is necensHry lo open a lillle (o you
tite seteral parts of il, in order to apply it to
the description of the persons and thinga
Rpokon of. It is described lo be a libel con-
cerning his present majesty, and bit majesly's
goiernmeol of Ihe kingibim, and conccmio^
■he public oSaiis thereof, and iMiocerDiDg his
ministers; and il is expreaaed to reUle to ft
treaiy concludeil betwict bis present majesty,
and the French king, and the kiug of .Spam, at
tieville, lo Notember, 1739. The liberty that
eSl] 5 GEORGE \L
from diingfs done by the prinoes in that treaty,
upon a pretension, that it is an extract of a
private letter from the Ha^ne : he says, *' A
rumour hath been for tome time privately
f Dread about, nnd be^irjns to f^in credit here,
tnat a misunderstanding will soon diaoover it-
self between the allies of Serille.'* Now the
allies of Seville are tvell known to be his present
majesty, the kinv of Prance, and the kmg of
Spain. Apfain, the writer soea on to aay,
** That certain ministers*' (whom the infbrma-
lion explains to be the ministers of his present
majesty) *' having at length found out, that
too close an union with Prance, and a war upon
the foot of the treaty of Seville, is quite against
the grain of the people, are endeavouring to
bring about an accommodation with the em-
peror, and to undo every thing they have been
doing for these five rears past," which will
carry the calculation back to the SOth Septem-
ber 17 S5, when the treaty of Hanover was
made. And then afterwards he says, " If this
fhoiild prove true, it will certainly redound
Tery much to the honour of those gentlemen,
who have so vigorously opposed the late mea-
sures; and the ministers, who have not only
concerted and pursued these mrasures^butloaded
all opposition to them with the foulest impu-
tations, will be obliged to take a great deal of
shame to themselves." And then he asks the
3uestion, '< For what can be a stronger con -
emnatioo of their own past conduct, than to
see them wheel about all on a sudden, and
pursue measures directly opposite ? And what
can be more ridiculous than to see them desert
one ally, whose good faith, sincerity, and even
conlinhty of friendship, they have so often ex-
tolled ?" Here is a plain charge of perfidy, or
breaking of faith. ^ A|^in, the mini&ters are
represented as ninning mto the arras of another
ally, whom those ministers have set forth as
the most dishonourable, ungrateful, and perfi-
dious prince. Next, these ministers are repre-
sented as putting themselves in the ]M)wer of
that prince ; and says, « If this prince should
refuse to deal with them, after the usage he
hath received, they will be broke with all the
courts of Europe ; and he cannot be insensible
of their perfidy to others," (that is to say, the
former allie:«} ** at the same time that he is
treating with them." Gentlemen, you may
plainly observe here, that thin is a |)Ositive
charge of perfidy and breach of faith on these
ministers. Again, the libel, or pretended letter,
charges them with bringing on their country
vast expenoes, not to be juinified, and a further
•xpence and hazard, which their precipitate al-
teration of counsels will certainly involve it in.
And then he proceeds to represent, that they
caanot, at present, treat with the emperor, with-
out infraction of solemn treaties, anil violation
of faith. Gentlemen, this is a direct charge
of perfidy, in the strongest terms. In tlie next
place, he represents the eflects of the resent-
mrat that they will draw on their cfiontry b\
their violation of faith : one immediate effect,
he laysi ** may be the interraption of tr«de,
Trial of Richard FranckUttt
[0S
and the seizure of that vast pledge wbich Spa*
hath at this time in her hands." AnoClier bc
cessary effect (for so he thinks he may cell it
will be a conjunction of France and Spaio ; an
a certain court (these are bis worda) may has
the mortification to t>ee those two crowns unile
against them more strongly than erer, by thd
extraordinary management, after tbey baa
spent BO many millions to prevent it. Gcniis
men, this is the nature and import of the libd
and whoever it is that is charged with tfaes
things, it is plain, that there cannot be a msv
evident charge of perfidiousness, and pmsnim
measures d^tmctive to their coantrv. Th
reason of my opening tbos, is to sihew am
make way for the application of the libel I
the persons and thinga mentioned in it. An
in order to shew that the libel is applied te hi
present majesty and his ministers, and the ad
ministration of the government of thb king
dom, and cannot be applied to any other, it wil
be necessary fi)r you, gentlemen, to oonside
who are the ministers thus charged. The de
scription is, that a misunderstanding will sooi
discover itself between the allies of Seville*
and that certain ministers having at leafttl
found out, that too close an union with Fraees
and so on. Gentlemen, who are the allies e
Seville? They. are the king of Great Britaii
the French king, and the king of Spain. Now
the ministers here spoken of are charged will
perfidionsncss in breaking that treaty, who, ft
be sure, must be meant of those ministefs dm
were empowered to make that treaty ; for ■
other could be guilty of breaking it : and, ii
deed, the author himself hath, in this vcr
prelcnded Hague letter, fully explained hi
meaning ; and that it is not France or S|iain, q
their ministers, that he thus charges with per
fidy ; for he tells us, that one necessary eflcc
of 'such violation of faith, will be the conjunc
tion of France and Spain ; and that a oertai
court would have the mortification to ac
those two crowus onited against them mor
strongly than ever. This amounts to a de
monstration, that neither Franee nor Soaii
nor their ministers, are charged witth brcHkii^
this treaty ; for they are plainly excluded : i
so, then there is hut one party (eft, to wii, th
king of Great Britain and his ministers ; an
it is plain, as if the ministers of Great Britai
had been in ex|)ress words. I am almsi
ashamed to explain what is so plain ; thoogh
thought it proper to set f«»rth thus at ore
And, gentlemen, if more circumstanoes if
wanting to confirm this further, they mey I
added afterwards ; such as these, to wit, tb
persons who opposed them were stiled Gei
manized patriots! another expreaskm is, tk
seizure of^ that vast plcdfre, which Spain bat
at this time in her hands. Besidm, it is ii
cumbent on them to shew what other ooort i
ministers these things can be applied lo. Ito
is another obfcer^ation, which I hinted ntMbfl
wliich is, that these ministers are endeaseiili|
to undo every thing tbey have he«» ieiogw
these five years pest ; wbioh otiriei H biBKl
/ur c Libel.
tUe lUne of racnnletin^ the trealy of Hanorer,
wbicb «u in Keplember, t7!&- GenlUnien,
>t a hr fmm our (JMire, tliat > tarc«d con^truc-
liou iJifluM be (Hide or dnwn from tliis paper ;
bol Micli a line only, as every underaIandiD(;
frtmo, ifaal takn il up and reaita it, would put
upon it 1 liui I would uiiI be ilitiugbt to raeau,
ttel cv«ry reader UDderslanda it as a libel,
■<r a acaiKlnloun libel, aa courta and juries do :
Nftithc liii*' U Qui 10 absurd to suppose luch ft
Ibac. B«!Hil««, ii is *ery well Vdowii, that
tlsi bate been Hverul cases ol' tiiis nature,
iktt kmte bten undtrslood by (be Court and
;Diy as snrli, I meau ai a libel, before Ihn
■DM', and it is Dcccssary to meDlion to yoti,
Ihtl a picture may be drawn very lively, and
MMtrued ao ; and tbat a libel may be written
mhi frigned Dame*, soil yel plainly under-
■Md; aa in tlier^eof Mr. Mist's journal in
aO. wherein ilu- fictitious mines of Eireff
iiSaphf vl Persia iiere inserted ; yet, not-
" " idin|[ tliese asiuioed names, when il
be tried by a jury, tbey understood it,
nboneit man wuold, to be a scandaluiis
■ball not lake up Don any more time
Ikt* bead. Tbe next tbine is, whelber
dlndanl. Mr. Francklin. it^iltyortiot of
beta cliarj^d in Ibe iaforiaalion ? And
IWleineD, ne sliall (cire you the alrong;-
clesrrcl pioof in the world: we shall
i.t^Kwilnnis who bouffbt six of theie
' 1, wlirr<:in ihe nreteiided Hatrue letter is
I, uf Ibe (leleMBot himself, at his abop ;
that tbe defradani ordered bis serraut to
giif kiui ilivni ; and il will apptar to you, thai
ii»|in»'^n wtiu bouifbt ihtm, kuld liiem also
haurlf i and, if that waats I'lirlher aofibnua-
«■ can prove, that Ihe defendant pub-
BCditioUK papers or joumnli' erery week.
I dting* beiiig laid Mure yOu, we expect
*iU do juatieu betwixl Ihe king; and tbe
I'd', (Cbarlea Talbot, e*(|.) My
■Md fCRllenteit, 1 am on Ihe Mine side ;
NtbacaM i* so plain, I would not Uk« up
k *t your lime. Ttie liliel is a^inst hia
--- —-* his piiQci|«l officers and ministers
cribe colour of " An Extract of a
* LcUerftam IbcHaifue;" and though
• iiMid su, yel wbuever vonHidera it, aod at-
Ms 10 Ibe I'nmf and stite of it, and tendency
n > •(lb* •Itolc, will plaintv be omvinced, that it
v arf SB Eat(l»h liretil i but lei il be real ur lie-
s' Ba«, it u tbe same ihinK, if it is a libel, and
W Ikew4iji.-cl-tuatl«r thereof is Bgaiust ihe go-
W Mivt^^ published titereio are either true
iCrr kMsu, if ihr|iuiilicslian thereof isdi'lriuieittal
• klfc* gnvarnmott, and of a maiicioDH, i«;iiri-
' «:,iad anltUVUB deaign, to ciwale A uiisun-
■ ' t^MiidiiiK and discord between hit nujetly
MikiaallKa-, attd to raiae ^uluiiities iu the
■ af iMaubjecU: aud, indeed, t<<r what
■ can It beanpposed to bnve beuii
'Viltaa wf tiling*, irfMwioK
A. D. 1791.
■edition and jealouiy, and dialurbinf Ibe public *
peace? A^ain, the libel isnolonly againet hi*
present majeaiy, but also asainsl his uiiniUers ;
thai they were about lo mute a inaiy wiih th«
emperor, wbicb woHld be undoing every tbin^
thai they bad been doing for these five yeara
paal, which would occasion them to take a
greut deal urshame to themselves. The next
thing be charges t)ie miniaters with is tlie de*
serting ol' one ally, and inconsequence of that,
Ihe flying into the arma of anotlier ; aud that,
if he thoughl fit not to deal with them, iheu
tbey would be broke with all thecourtsof Eu>
rope; and that be could not be insensible of
their perfidy to others, at tbe ume time that
he was treating with them. In the next partof
the libel, heaccuset tbem of baiinff brought n
vast expence on their country by ilu-ir furmer
measures i and thai their present iiieuau'cs will
certalitly involve il jo a turlher expence and
hazard. In the otXt place, be points out to th*
people tbe consequpui-et and diSiciiities aiteod-
mi; these measures; tbe first of which, he says,
to his apprehension, are very fatal i aud iha
second, almoit ia«<iperaUle i he says, thai od«
of tbe conaeqiiencm will be the iulraction uf ■«•
lenin Ireatiet, and drawing on their cuiinlry the
resentmfnla which uaiially attrud violation of
faith : Bonlhi-r Gc-ii!>rqi>eui*e, he says, will ba
Ihe inlemiplioo ol trad.-; imil that another n)ii>
sequence wdl be the neizure of Ihul vast iiledga
which Spam bath in b^r bauds; aud ll>e last
consequence, which bi' meuii'iuv, uf such oiea-
sor^, (and which be tliiiika h^ may call a ue-
cessary conseqaeoce) is tbe coojunciioD »F
Francp and Siioia ; aud Ibit • certain court
(whirb, as hulii breo alrrady mentioocd, can
oolv be applied lo Great Urilain) may have tbe
mu'tlifii^aUoD tu aee these two crowns united,
SKainit ihrm more stiougly than ever, alter
tbey hate spent so nieiiy millions to preieut it.
Gentlemeu, 1 hope il uow plainly appears to
you, Ibal this pretendeil Uague Li'tler i^ a li-
m), and, I may say, a very muhciuus aud aedi*
liouB one loo. If any tbing may be called a
libel, surely miniaters of stale unduiog what
they have been doing for five yeara publ, and
desei'tiDg alhes, perfidiously exposing their
country lo basardii aud vaiilfxpeoces, seizing
ibttir effects, and ocmsioning oilier caurts lo bo
united agninst their own country, may wdl be
called a libnl ; especially wlieu the libel also
curries in il the higbeht charj^e aKaiust bis Eoa-
jesly '■ goverument, and lending tu sow seditiou,
and jealousy, and discords, betneen his luajei-
ly and bis olbes, as wdl as between hia own
siihjecis, and thereby disturbing tbe juiblio
peace. That which temaius is, of whom arc
these defamatory Ihini^s said, aud what court
uid ministera are tneiM, or tu whan tlwue es-
preiMons are applicable r Tbe espre^uHua ve,
'- Cerlaiu miiiuters ntu eudeavoui mtt. aixl *
certaiocoarlQiDy baTethammiifi<»liun i»i>i'i-,"
ice, I tbink every comiuou read<-i mil t'le-
■eotly undersiBud them lobe iIk umrisn i ini-
niilursot' Great UriUio : and 1 1hIi'« 1 o'^y
renture to*ay,lliUtlwg«tfwueQwltwf>h(«
635J
5 GEOUGE XL
Trial of Richard Francklin,
[636
■Ide citinot point out what coart ind miaMtcra
•re meant bjr these expressions, if it is not the
court and ministers of Great Britain. Gentle-
men, the whole connection of the pretended
Ha((ue Letter, taking it all too^ether, plainly
points out to be meant of his present majesty
and his ministers ; and there is no part thereof
that can l)e applied, with any propriety, to any
other court or person whatsoever. In the be-
Hfinningof the libel, we are told, that a misun-
derstanding will soon discover itself between the
allies of Seville; and then immediately follows
the charge on certain ministers, that th^ were
undoing every thinpr that they had been doing
five years past These words « Certain mi-
nisters," roust have a reference either to the
ininiiters of Spain, France, or Great Britain.
With regard to Spain, you have been already
told, that it cannot have an v reference to them,
because one effect of this alteration of aflfairs or
measures, is, that Spain would seise that vast
pledge which she hath at this time in her hands :
IS this a libel on the ministers of Spain, and can
this give an occasion to Spain to lay hold on
their own eiiiects, and seize their own treasure?
No, it is nonsense ; so that the ministers of
Spain cannot be meant ; besides, it is notorious
to every bo<ly that knows any thing of the
South Sea Conipanv, that that Company al-
ways have, and will have, while it is a Com-
pany, efiects and treasures in their hands liable
to be laid hold on and seized ; so that as the
ministers of Spain are not the ministers here
meant, so likewise it shews that it cannot be
meant of the ministers of France ; for they are
plainly excluded as well as the ministers of
Spain: the words are, "That certain ministers
having at length found out, that too close an
union with France, and a war upon the foot of
the treaty of Seville, is quite against the grain
of the people.*' Is this applicable to ministers
of France ? No ; it is not sense to apply it to
the ministers of any other court than Great
Britain; but applying it so, it is good sense,
and very proper : so that as the ministers of
Spain and France are both excluded, it is plain
to a demonstration, that it must be meant of the
ministers of Great Britain : and seeing every
part of the libel is applicable thereto, and can-
not agree with any other court than the court
of Great Britain, I apprehend, it will appear
plain to you to be a libel, and that the expres-
sions are meant of his majpsty and his minis-
ters ; and if so, then there remains only one
thing, and that is, to fix it on the defendant ;
and this we will make appear beyond all con-
tradiction, not only as bem^ the printer of that
weekly paper, but as havmg sold them him-
self. And, gentlemen, when this appears plain
to you, after the Attorney General hath done
hb duty, by laying a full proof before you, it is
hoped you will do yours.
Att. Gen. I do'oot know whether they will
deny the defendant to be the aathor or piib-
lithcr of the paper ; if they do, I shall prove it.
Mr. Fait^erUy. We do deny it.
Jit Gin. CauMr.Jcnkiiii.
Mr. Jenkins appeared.
Att. Gen, Mr. Jenkins, look out the copies of
his majesty V Speech, the 20th of January,
1725.
Here it was produced.
Att, Gen. Did yon examine it ?
Jenkins, Yes.
Att. Gen, Where?
Jenkins. At the parliament office.
Mr. Jenkins cross-examined.
Mr. Ftuakerley. Hath it been in yoar cai-
tody ever since ? — Jenkins. No.
Mr. Fazakerley. How know you that to be
the very same that you examinea P
Jenkins. Because 1 marked it.
Mr. Fasaherle^. When, before or after yoi
first parted with it ? — Jenkins. Before.
Mr. Fiuakerley. What mark ? Did yon pot
your name to it i*
Jenkins. I put the two initial letters of aiy
name, which 1 will shew you.
Mr. Faxakerlejf. Are you sure that it iMth
not been altered since P
Jenkins, Yes, I am very sure.
Here his majesty's Speech to the Home ef
Lords was read, bieginamg thus : " My lordi
and gentlemen, 1 have had such frequent ei-
perience," &c. Also his majesty's Speech to
the House of Commons.
Att, Gen. This Speech of the king is gene-
ral ; hut I shall be more uarticular, and ihitt
shew you a copy of the Address of the HoBse
of Lords, when the treaty of Hanover was lai^
before them, wherein they express their satif*
faction, and mention the lling of Spain particu-
larly.
Mr. Fazakericy, Though I have all the ho-
nour imaginable Tor the House of Lords, yet I
question whether their addresses are to betakes
as evidpuce.
Att, Gen, We shall read a copy of tlie#our-
nal of the House of Lords.
Mr. Fazakerleif. Originals are the best eri-
dence of fact ; and whatever addresses or pro-
ceedings might have been made in the HooM
of Lonis, 1 think they cannot be proper eri*
dence here.*
Att, Gen. What I produce is a copy of the
Lords' Journal concerning the treaty of Vi-
enna, that the secretaries of state laid before
them.
Mr. Faiakerley. I own it is a Journal of the
House of Lords, but it is not a proper evidence
of the facts therein mentioned.
Mr. Bootle, My lord, 1 apprehend, that the
evidence Mr. Attorney General is now purso-
iiig, in the course of evidence, is irregular, and
on that the objection doth arise. He says, hs
will prove the facts by the Journal oif the
House of Lords : suppose the secietariei sT
state have failed in the copy laid before thcms
I offier this to your lordship's consideratioD.
* See 5 Term Rep. Ui.
for a Libel.
r. I find, Mr. Bootle, that all maoDer
MIS will be raised to aerTe vour client ;
il not pass awa J the time, becauae you
ess another way ; you shall hare niy
N>at it.
'Yinge. Will you produce that copy ?
tn. We will do it. Mr. Jenkins, pro-
orders of the House of Lords, the
February, 1725. (Here it was pro-
^an^e. Is it a true copy f
\, Yes.
range. Have you had it ever since it
I in? — Jenkins. Yes. ^
le copy of the Journal was read ; the
vas a copy of the Treaty of Peace
Vienna, dd April, 1725, a copy of the
' Commerce made at Vienna, 1st of
5, and a copy of the Treaty of Han -
I of September, 1725.
en. It is proper to see these conies*
range, Mr. Jenkins, What is tnis ?
r. 1 he Treaty of Peace,
''oi^e. Where had you it?
r. From the parliament office.
'onge. Have you the Treaty of Coro-
de at Vienna?
I. Yes, (Here the title of it was read
eaty between Charlesfemperor of Ger-
% and Philip the 5tb, &c. dated Ist
5.)
en. Read the 2d and 3d Articles
(Here they were read.)
be S6th Article. (Here it was read.)
he 47th Article. (Here it was read.)
purport of these Articles was, (as I
that they were of great prejudice to
(ty's subjects, and consequently was
»n of diflference."
hat the Address of the House of I^rds
jesty may be read, and his majesty's
ti the 17th of February, 1725.
uakerley. For what purpose would
them?
en. You will understand that immc-
the Address was first read, and then
sty^s Answer; the purport was to
I there were difierences between his
rty and the king of Spain, &c.]
itakerley. Mr. Jenkins, by what did
line these ?
t. By the original Journal.
en. 1 shall prove in the next place,
kionf of Spain, 15th July, 1725,
as about two months before the treaty
er) made an express demand of Gih-
uzakerley. I do not rightly see
or understand this evidence ; 1 sup-
to make up some defects.
wm. Call Mr. Tilson. Mr. Tilson,
any papers with you ?
Yoi, a letter.
M. Be pleased to give my lord and
eeMBt how you received that latter.
A.D. 1731.
[6S8
, TikoH. My lord,, this is a letter from the
mari)uis of Gframeldo, secretary to the king of
Spain.
L. C. J. Where received yon this letter f
TiUon. 1 received it at Hanover.
X. C. /. When received you it?
I'ihon. On the 1st of August New Stile,
1725.
JiU. Gen. From whom received you it, and
in what manner?
TiUan. By a messenger that came from
Sycovy fromllr. Stanhope.
Att. Gen. What was tne messenger's name?
TiUon. One Walton, the king's messenger.
Att. Gen. How received you it ?
Tilson. In a packet made up with his dis-
patches.
Att. Gen. Where hath the letter been kept
ever since?
Tilson. In the secretary of state's office of
the lord Townshend.
Ait. Gen. Where took yon it from ?
TUson. From the book.
Att. Gen. What were yoo ?
TiUan, Under-secretary to my lord Towns-
hend.
Att. Gen. Can yon interpret it immediately f
[No answer was given.}
Mr. Taylor. I object against this evidence,
by reason it is not the bert evidence, because
my lord Harrington is here in England bim«
self.
Att. Gen. I apprehend it is sufficient, and it
is impossible to prove it otherwise ; the bnl
Harruufton transmits it to bis master.
Mr. Taylor. If my lord Harrington wei«
here, he could give evidence himself.
Att. Gen. My lord, we have found an in-
terpreter, and he will interpret the Spanish.
Call Mr. Becking.
L.C.J. What read yon it for ?
Att. Gen. For a proof of the demand of
Gibraltar, by virtue of the treaty at Vienna.
Here Mr. Backing was called.
Att. Gen. Mr. Booking, Do you understand
the Spanish tongue ? — BocAing. Yes.
Att. Gen. Have you compared it with the
original letter ? — Backing, Yes.
Att. Gen. Is it truly translated ?
Backing, Yes.
[Here the Letter was read subscribed Ora-
meldo.] The purport of it was demanding up
Gibraltar.
Att. Gen. The next thing is the treaty of
Hanover, which we have upon record.
Mr. Fazokerley. I do not think this evidence
fall ; for the allegation is, that there were cer-
tain differences and controversii^s between his
late majesty and divers princes and foreign
states, being his allies, and the king of Spam.
I do not tind that this evidence shews any
thing of it; the difference that the evidence
shews, is only between the late king and the
king of Spain. I apprehend they ought to
make the evidence agree with the informatiMi ;
fcp^iJl 5 GEORGE n.
^^f it *'i^M from lliM, it is u do eridence
f** %t. Gen. 1 .ppreheod thi, « „„ otjeclion
• Mr- -Foiflto-ify. The informalion is, tb.t
t^fore Ihe jlemise of ihe laie king-. ^1,^^ jlf.
fereoces md co(itrorerai« fir.,ae hetween bu
.aid lat^ majKty and di„r. prinp^s and foreiim
, stfttes, beiOK liw hIIim, and the king of Spain
jjow, the nbjection ig, i|,a| tbe efidence tbpv
J,B*e produced, sheffs that Ihere w^reonly dif-
»fereiice« between Spam inil Great Britain.
'^",'^?!-. "'■*■'* '" "» •'•■"Clit in that obiec.
tioo ; f^'f ",were so. „ they ,„ppm,e. lop.
prchend this is nolraalenal to ihe inftrraation ;
for il IS well IcnowD, that lliere is a distinelion
betweep an aciion and an iadicimeni. E»ery
lliinif Id an aciion, in cane of con trad Ictioo
ougrht 10 be proved ; but if tiisre be an alleea-
tion in an indicimenl. and ihai the crime may
remain without it, it a well Itnnwn that that »l-
leSTft''"" *« •"" (ifCeBMry lu be profisl ; and il
is suflicient i-nnu^h to pmire him tfiiilly of the
crime that he is indlclpd for. Out wFial t han
Iprnved, them Ihe difference ainl disputes be
twoen hi« i«le majesty and his allies,
the Ostend company; parljenlarly by ihe 36lh
Article , is, that all the snhjecis of the emperor
sltall enjoy ihe same priTili^es kk the Uniii-d
Province*. Sec. bo likewise by the 471 li Anicle.
I
tain; nnd that ii the expren declaration oiide
to Ihe House of Lords, and was ibe foundation
of the troublea in Enmpe, which obtiffeil the
lale Ving. wiibout loss of time. In enter into Ihe
treaty of Hannier ; namely, wiih Ihe ennude-
ration to the trade and commerce of Vienna.
And now, all iheae taken Inifether, I snbinit it
In your lordship, whether there is not asuffi-
oiont prooi; tlial lliere were fliRerencct subsi«l-
tng between his [0!\testy aud his allies, and the
Unif of Spain.
Sol. (in. This alleg^linn is not material ;
for whether there were differeucea or not »oh-
siatin([, we Bhnll fix it by evidence that Mr.
Fraiicklin is equally guiltv, aod tbut il will nnl
•Her the nature of the ofTenee : besides, it is
•dmllted bv the renllemnn that made the objec-
tion, that the etidence nmnunled so tar as to
proM ihal there were differences between Ihe
lata hin^ and the kinn ofSnain ; ami we have
Jjoiotctl out two tiling which shew there were
difference* ; the oue rclatinff to Ihe Osiend
onnipany, snd Ihe other to Ihe demand of
Uibrallar. I ftgree with that gentleman, that
<9re.it Urilain was concerned in it; but to say
(hat they were slone coueenied in it, and that
■iv the Addrnia of ihe Han>e of Lords Ihe
JJnIch were not concerned, is a plain mistake,
for tbey claimed ■ ri^it to traile also ; yea,
Ihey wera more tmmedialel)' concerned thnn
Great Britain; and Iherelivc il i« rightly
•tated by Ihe House ofLords Address ; lhou);h,
U I taid before, it is not maieiial whether there
were differeuoes (ubsitiingr or not.
Mr. IktaitrUy. 1 IhotigUt, while ibe thing
TrinI ^fltichard PrancklU, ^B
was fi-eih ia memory, it woahl Iwte be
plaineil ; but since they have gone so
will be better lo make an end. I sha
say, tliat as to what thoy say is immab
Ihey are willing to have that tiisller iiuia
I am willinfc it should be struck oul ;
Ihpre \i n crime described in Ihe indictn
infnrniaiion, I agree ii is not necensnry u
every allegation, if the crime remaiiis *
Il ; so that, if they will irate it, I bid sal
|et me get rid of one tliiug at a time.
if there l»e enough Jell, properly ohan
llie detendani, then, my lord, this ou^fhi
dropi ; for they have pruduced nolhin
pruveslhat allegation : and whatever diSi
there might be between the late king and
or any power* whatsoever, not proper
scril>e(l in this ioforinaiion, I apprehend
are not to be taken as a part of the chai
thisinlbrmiiiuu. Nowihe main Ihiogis,
Iher ihey hare laid it so, and made oul
differences. They say, that the difle
were betwi^n ilie late liing, and divers B
aud foreign slates, being his allies, an
king uf Spain. 1 think the letter pm
from the marquisof Gr&meldo, or takeli
way you please, it only refers to didei
betiveeii the king of Great Britain and I
Town there weie grants of coromerco |
emperor, which might he of injury »
Elates ; but though they think that ibet
fbundation for differences, yet, if then: is
there is no reason to say that there was I
tusl differeace; tbey have laid it aa, m«
and OS for that other part of ihe evidenea t
House uf Lords, that is not nuScient, fo
mcnlionediheieasan infraetion of their tr
but whatever infraclion it is, yet, I humbi
prehend, Ihat is not a reason that lliet«
diOcrenceaon that account, liir if olbcri
think otherivise, or aogulcsce to it, then i|
not be called a difference ; besides, that Ad
of Ihe House of Lords was only the swtic
of thai great body ; and lhou4;b a regardt
lo be bad to them, yet it is nut any eviiJen
the fact, unless Irausacied in a judicial
They Diude a collection or coustructktn fh
hut I tliink, in my opinion, it is pnaaibln
might make a mistake ; we are now npon
deuce, and it ought In he cstabliahed by >
per legal evidence; for that [as I aaiif b«
IS unly an evidence that thereby their «
was broken, hut no e\idenre tbatthmi
difference arising from it.
Mr. Buolle. Mr. Attorney is pleased to 1
that a criminal inlormatiou, of which ■
may be evidi'uced, and a part overlooktit,
L, C. J. Is this eseeuiiat or not t
Alt. Gen. No.
L.C.J. Why hath there been lli«at!
two hours spent aboniit?
All. Cm. Thisis.nolbeIweennrettBi
and Spain, but other stales; and it is Iff I
iliul by the Articles of the Treaty cfTii
there were someof them iucaiiM»lentlritt1
relstingto ibc foreign powers.
Mr, Notl. As they canuol proreJ
1
for a LiUl*
nkerky. Did not she send her for tbe
I? — Goram. No.
PH. Call John Smith (aforesaid) who
Look OQ that paper. [Here another
iflsroan, of the 2d of January, was
3 Where bougfbt you tiiat paper?
At Mrs. Smith's under tbe piazzas,
yal Exchange.
!ra. Do you remeoiber when?
The 9tb of January, the same mom-
bouf(ht at iMr. Francklin's.
?M. Of whom bouj^ht you it ?
Of herser?ant.
en. What is her name ?
I know not.
en. Are you sure that is tbe same
Smith, Yes.
tn. Did you mark it? — Smith, Yes.
ten. Call Mrs. Ann Pierce. (Who
Did you keep a shop formerly ?
ierce. Yes, though not now.
en. How long ago is it since you
ierce. About three or four months.
en. During the time of your keeping
id you sell the Country Journal?
^Urce. Yes.
en. Where bought you them ?
^Urce. I ne?er went myself.
en. Whom scot you ?
^Urce. One David Da vies.
en. To whom sent you for them ?
^ierce, ToMr. Francklin.
en. Can you remember you had any
0 of the 2d of January last?
^ierce. To be sure 1 liad.
en. Who wtnl for them ?
^ierce. JVIy.man.
en. Did you ever send any body else ?
Hcrce 1 cannot tell.
}en, I would desire you to recollect
bed tlm^e of the 2d of January.
''ierce. He always fetched ihem.
en. What number had you the 2d of
^ierce. I cannot tell e;cactly the num-
I have generally about 7/. a week to
be CrafUmau.
en. Did you pay for them of the 2d of
•
Pierce. He had always about 7/. a
upwards.
en. But do you remember that you
hem of the 2d of January ?
*ierce. 1 do not remember that in par-
i'oT it was about that time I was
ren. Did you pay for them yourself?
Pierce, No: but my servant, David
lid.
[Cross-examined.]
9oik, You said, you did not always
r oiao, David Davies, for them ?
Heru, You are mistaken ; for I said 1
mil€^ Cfto you sayi on your oath,
A. D. 17SI.
l^m
mistress, that yon paid for these CraAsouin tbe
Sod of January in particular ?
Mrs. Pierce. I shall not answer yoo.
Mr. Beetle. Who bid you not to answer me ?
You shall' do it. -~
Mrs. Pierce. I don't know yoo. [Here tlie-
Judges reprimanded her, and desired her to
ffive an answer, which she did thus.] I be-
lief e I paid him the money for the Craftsman
ef that day, as well as for those of other days.
Mr. Bootle. Don't these papers pay duty ?
Mrs. Pierce. I do not know.
Mr. WilLs. Call David Davies. (Who ap-
pears.) Were yon employed by Mrs. Pierce,
before January the 2d, to fetch in her Journals ?
Davies. Yes.
Mr. Wilfet, Did vou fetch in the Craftsman
among the rest? — iJavies. Yea. ■
Mr. Willes. Where did you go for these
Craftsmen ? — Davies. To Mr.-Francklin's.
Mr. Willes. Did you go any where else for
them ?^Davief. No.
Mr. Willes. Can you remember that you
fetched the Craftsman the 2d of January last?
Davies. Yes.
Mr.' Willes. You did bny all tbe Craftsmen of
that 'month at Mr. Francklin's — I mean, all
that you bought ?
Davies. Yes.
Mr. Willes, When you carried the money
for them, to whom paid yon it ?
Davies, Sometimes to Mr. Francklin, and
sometimes to his servants.
Mr. Willes. Can you say, particularly for
the month of January last, that you paid tbe
money to his servants ? — Davies. Yes.
Mr. Willes. Did you continue to pay
weekly, all the month of January last, fur what
you boutrht of these papers? — Davies, Yes.
Mr. Willes. Had you any of thtse Crafts-
man any where else that month ?
Davies, No.
Mr. Willes. Can you rememlier liow many
you bought of the 2d of January last?
David. No. ,
Mr. Willes. How much paid you a week ?
Davies. About 7/. a week ; because I fetch-
ed between 40 and 50 quires weekly.
[Cross-examined.]
Mr. Strange, Can you recollect so exactly,
as to tell that you fetched and paid for the
Craftsman the 2d of January, and for all that
month ? — Davies. Yes.
Mr. Strange. How can you be so particular
as to that month ?
Davies. Because I did it weekly before that
time.
Att. Gen, There is another thing, which I
shall name, which will likewise prove, thai the
defendant published the Craftsman of thai day ;
and that is the stamp-duty, which is one shil-
ling, paid for every advertisement ; and here I
shall shew to your lordship, that he paid for
the duties of that day, and for 3tt advertisements
of the same day, which is exactly the number
contained in tbat day'a Crafiaman. Call Mr*
647]
5 GBOBfiE 11.
LuDDif. (Who appears.) What officer are you?
Lunnis. Ao assiitaot to the Regiater ol the
StaiujMiffice.
. Ati. Gen. Da you koovr aoy things of the
account of the stamp-duties at the offiM f
Lunnis. Yes.
Ati.Gen. Hare you the book?
JLunnis. Yes.
Att. Gen, Produce it. (Hera it was pro*
duced.) What is that book ?
Lunnis. Ao acoouot of the adrertiBelkientsiD
every paper.
AU. Gen. is that the original of the Stamp-
offifle^book? — Lunnis. Yes.
. Alt. Gen. You kii«w what entries there are
in it conoeruing Mr. Francklin?
Lunnis, Yen.
Att. Gen. What are these entries?
Lunnis. They are from about Idth of May,
1727, to this time, weekly and monthly.
Att. Gen. Who paid tor them?
Lunnis. Sometimes Mr. Francklin, and
sometimes his serrants.
Att. Gen. Was the payiaent made in hb
own name always?
Lunnis, Yes, in h*s own name.
Att. Gen* Are there any adreitisememls that
relate to the 3d of January last ?
Lunnis. Yes, 38.
Ati. Gen. Were they paid for ?
Lunnis. Yes, in Mr. Francklin's name.
Att. Gen. Read the entry. [Here it was
read. The purport was, Hecetred the 80th of
July, for the duty of 38 adfertisemeots, &c.
for the Sd of January last.]
Att. Gen. That is the exact number in the
Craftsman of that day.
[Cross-examined.]
Mr. Strange. Do you receive the money ?
Lunnis, No* ^
Mr. Strange. How can you tell that he pays
it then ?
Lunnis. Because I make it op to his ac-
count
Mr. Strange. Do you know it yourself?
' Lunnis. No.
Mr. Strange. Are the papers brought to the
office, and are you the person that receives
them?
Lunnis. I am the person that takes in and
registers the number of the advertisements, and
gives a note or an account thereof, to himself,
or the person that brings the |>apers.
Mr. Strange. What time does the act relate
to theaclvertist'mcnts being paid ?
Lunnia. i don*t know.
Mr. Strange. As you make out tlio warrants,
and keep account of the advertisements, ex-
plain it ; what is its nature? Does your war-
rant express thennmherof the advertisements,
and the sum to be paid for them?
Lunnis. Yes.
Mr. Strange. For what purpose do you
it out?
Lunnie. After 1 hare nade It out, I give it
ialt Ihr Boeanr'a tflkc^ md then mm the
Trial of Richard FrancUin^
Comptroller's, which is a cheek ma tf
ceirer's office ; and then Mr. Fraacklin
receipt for it.
Mr. Strange. Who recaivea die asoi
these advertisements, which you OMke i
warrant for?
Lunnis. T)iey at the Reeeirer's ofio
Att. Gen. Call Mr. Wehh. (Who ai
What place are yon in, in the Siamp-eti
Webb. A clerk in the Reee'wer's office
Att. Gen. Are yon a sworn clerk ?
Webb.. Yes.
Att. Gen. Can vou give an aeceont
receipts had of Mr.Franckliov oo accoiin
advertisements the Sd of January last ?
Webb. He had one in July last.
Att. Gen. Do vou know if the adv
ments of the 9d of January were indu
the money ?— Webb. I cannot tell.
Att. Gen. In whose name receiveil 3
Webb. In the name of Mr. Fraijcklia
Att. Gen. Whether or not did you 1
any motiev, on the account of his adv
ments, before that tiose ?
Webb. Yes, I received something 0
account.
Ait. Gen. Was it a long time before
Webb. I cannot justly rpmeniber.
Att. Gen. How ranch was it yon n
the 401I1 July f—Webb, About 10/. ISt.
Att. Gen. Where gcHfS that receipt?
Webb. To the Com ;ii roller's office.
Att, Gen. Call Mr. 8cot. (Who ap
What is vonr office?
Scot. I am in the Comptroller's office
Att. Gen. Have you au account of sr
ney paid on account uf advertispii>eut»
CratUman the 2nd January last ?
Scot. I have them for the whole montl
not the day.
Att. Gen. What come they to?
Scot. Ten pounds eighteen shillings.
Att. Gen. In whose nsme wat; it paid
Sr4)t. In the name of Mr. FranckNn.
Att. Gen. Were there any more paj
befere? — Scot. Yes.
Att. Gen. Who paid\hera ?
Scot. 1 cannot tell.
Att. Gen. On whose acoonnt wer
paid ? — Scot. On Mr. Francklin's.
Att. Gen. Have you got any warrani
Scot. Yes.
All. Gen. Have you got a particuh
rant for every mouth ? — Scot. Yes
Att. Gen. Look oat the warrant I
month of January.
Here it was read. The purport was
there was received lOL 18s. on Mr. Frai
account.
L. C. J. What is the nature of tha
rant?
Scot. It is a warrant given from am
to another, containing the number of t
vertisemenlsi sml sum for the duty.
Alt. Gen. My lord, the other aid
owaed^ lint lltera. wete difltaredoei iil»
for a Libel.
bind lb«king^ of Spain, tiecame ire
' ) but tlii'^ my we btie
nideace of aaj difiereuce between
V tiul fail M'na, uit the kinf of
rtnob 1 upprebenil wc hare ; thoui^li,
I bcAre, il is not motrnal : but, it ibe^
I •Ml rsll niher wiinestes lo ptovc it
izclaaira of all the lubjecii nf ihe «m-
«. anil VM. my lord, by Ihe 36th Aru-
l« iltjiHUlea )a let all the aiil^)rcla of
the laine prniie^et u Ibc
. which IB an iBtrautiiiD at'
r HuBsier, lOM. Call Mr. Pay-
Blr. Faytant ippeara.
I. Mr. i>aysjni, g-ira aa account of
Ift I bn«|th1 Ibeiu frotn my lord Har-
Um^ What ia tWir import ?
tm. They cuntain thv nccenion of lbs
toirani lu Ihe llt^aly ut [Innoier.
Btn. Arelbvy kepttbere^
laf. Yea.
(ha. I« iba Aet of Acaestinn vnrolled?
•W. Vfa ; bat Iliia is the original one.
f^ak«rtey. My ioril, I apprehend Ibn
M la a prujier erl(lenc«.
fhit part of it was read anil ialerprpled,
^^ Frendi) vrhich eomiiUlaed of ib«
^M liie ircaly of Muiislcr, made in
Hb By tbi* Aot of Acecision, whkli
ft • tiiir maalha alter the treaty, the
MfM, llial il i* nhnlly their right lo ei>-
mIc pridliva of trailing to the En»l
nchiaivvuf all the aubjectsol'ihe cm-
te. aixl amnrdlnclv they enter inio, or
M IliP tieaty of Hanoier ; which, i
• a milBeieM eTJilrace of iliDereaccs
If bvtween hit l«t>i inajeMy atiJ hia al-
I the biar ot H^iai" We ihall aot lake
!iMr«iiiiiriD(-xaiiiimn(;(4herwiiiretfleii,
rllifT priiol if the iiilhrniatioD B<;Bin«t
Mtanl ; ludn^, ai w« apprehend, auF-
pro*"lilalmdy.
faankvrity. My Iwd, and cenllpmen
iry, lB«icmtiMelf'>r lliedelemlam. As
r'" irawttiel W*»e been tery long, and
..atiiT,.' xiineiresaart ; and, indeed, I
|>>XI I (hli>ks|ri^tilralor
' i)i;«it madou»eof,iosh*w
i.'i>tlly of the facl nf pub-
•licte 11 WB« only t« (ri'e a
.>r ^inij>i<»ni (hereof, liecanseil vras not
Ahr |irD>*it by the tint witnp>^«, and
loapMlaluiatMiebonrandahaifitince,
TIHWI : an, i;pmlelnen, J hope that
ibik thai Ihej hnTe auffidently
in ] and that you iriU not
il ihe Aist wilnV'M »»v* BO a fnll
• la a proMsfiitai) u ibe
A. D. 17SI. [C5a 1
defendant. Bat I amrebcad, thai of ■ prioler
iadiffereutftomapubbsber ; andlhataprioter'a
bnainesi relates lo all Ihe subjecU of Ihe king-
itom, nad he nay eeiily be imposed ppou. At
lu their e*id«ice, you will ftnd that they ei»-
lirelyseein lo rely on the hrst wilnaw, whv
saya, be neat to Mr. Fraochlin'a Bh«|i, and
that he was busy, and that he interrDpteil hint
by iskinir him tbraomeof the Joumalaof that
day, and ibat he did not dehinr tbem hinwelf.
Now, ■• Ik asked <i>r Juuraals in ^eacral, aarf
did not tell whose ; and that he tras busy, and
i\A not deliver auy to thai witness, niir reeeiva
aoy Bioney from him ; and bow be cain« by
iIhsc Journal*, it is not kiiowa ; he might hare
some in hia pocket that he ^1 elsewhere, odcI
by miatake put bis mark lo ifaem ; besides,
there wercunly ttfouf Ihese Jonrnats prtxluced.
As to the rest of Iha witnesses, they are only
bruBi;ht in, in order lo endearour tu sappnrt
thi« lir>4 witness's etidenee. and tonrote Uiat
they ruceired Jouritnls from (he dffenduni'a
scrraiita only, and paid the mciory lolheii). Aa
lo Ihe Biiinip-oiira accounts or books, I sup-
jnse ihey only show wImI money is raiwd 1»
llie cniiwu : so. genlletnen, 1 believe it will de-
lieod chwHy an ibe evidenea of llie first wit-
ness ; nnd Ihv defemlant ia imnishablc for dod«
but tbme IWD Jnnrnals produced (if be is gailtr
of that ;) fur if lie had snM alhounnd mare, i>
siffiiilies Dalhin«to this infurmaiHin. I shall not
Irauble yoii witb otiier ohserTatioos on il ; but
only take ncilice of Ihe ^reai canveniency nf
pilMiihiof tellers of lliis kind, and utlier netva.
Gendcmen, it is well known Ibat newspa|>fra
lire allowed not only in lliix, but \a othrr na-
tions ; and. Indeed, it i* reasonable ibat privaM
people shnnlil hnow these news as welt aa
oibers: nod therefore, when we are nnder m
ensE of Ibis kind, we ought not to be strict in
scanning^ Ihinf s Ibat eonie from foreign parts {
for to do aa. msT pot m^nr umler great did]-
cullies ; and, indeed, if mea were to be pu-
nished Iherefore, it won Id be a great means i«
have no new^ at all poMished ; fnrit is an easy
thinfT toaran Ihera biuIs<i: anil Iherel'ure, fen*
llemei), when yuu are in s esse of this kind,
oonsidcT how tnany Htlnesses they have pm-
dnred nipiiiist ibe drfendant, and thnt none oF
tbem proves any thing bat Ihe firsl, on whom
(as I said bsforv) (hey tveln entirely lo rely : [
hope tlipy are pcrKirtis of veracily.nr else ihey
wiHild out liate produced them. Next, do ymt
think ibat the defrndanldid it oul of a criminal
drsign r And I think it is prelly hard, an less
this seera extremely plain, ami nnleis he waa
oireiidinff in his mind, aa Ibecoun.wl on tha
oriier aide have alleged, and endeavoured lo
maka ont (ihoti^h. I tidnb. ihey have no*
psoved h.) Next, I would bare you lake m-
iiee of fbis information in the genrrsl : he Is in-
dieled «f two offences ; tlie ane is only lo snp-
port the olher : the second be is not guilty of,
hircNUae lh«7 have prifliiced imi cridenoe.
Again, the nexl thinu they have proved i« only,
Ihat lit; is gadly of the publicafioii (let ine get
free (rf' 0* mneh m 1 en,) tbooKh 1 ihmk be it
C5l]
5 GEORGE II.
innocent. Gentlemen, jou cannot but cobbI-
dcr the evidence that hath been given you ;
and therefore I hope you will not think that he
is (guilty of any thing further, 1 mean the act
of publication. Next, take notice, that there
are a great many aggravations in the informa-
tion ; so that it you find the verdict general,
then these aggravations must be published on
reconl, and be punished for them. For, lii-st,
in the information it is laid, *< That there were
aeveral differences and controversies between
his late majesty and divers princes and foreign
states, being his allies, and the king of Spain."
I shall not trouble you w iih any thing con-
cerning this ; but only name the last, to wit,
the accession of the Dutch, which leaves it
where we found it ; for the time laid in the in-
formation was, thai the diflcrences were ante-
cedent to the treaty of Hanover, which was
made the 30th of September, 17S6. But the
€\ idence they have produced is about a year
' alter that, to wit, about August, 1726 ; and
probably there miQ:ht have been no diflerence
at all then. I shall go on to make a few ob-
servations on the rest of the matter charged ;
to wit, " That he intended to disturb and dis-
quiet the happy state of the public peace and
tranquillity of this kingdom, aud likewise to
traduce and %ility the administration, and his
preaent majesty's principal officers and minis-
ters of state ; aud to represent them as persons
of no integrity and ability, and as enemies to
the public good of this kingdom ; and likewise
to reflect ou the king :" Far be it from me to
tliink that his majesty ono^ht, in any wise, to be
refl'jcteil on ; and 1 ti'.ink my client is of the
same opinion, and that he would abhor any
tiling to I'mc contrary ; and tliercfore I appre-
hend, that there is nothing iu this paper
(lake it in tlie stronge-i^t sense) that shews
any dcsi^^n of reflecting on his majoty ; and
suppose it doeij on his ministers, \ftnot one
of his ministers have b^.rn yet mentioned, on
whom the rcHcciion is said to be made. Some-
times it is said, that a reflection a^^ainst the
niiuistcis is one against the king : but, with
submisbiou, 1 think it is not ; for princes may
sometimes have the misfortune of bad ministers,
as well as private pei'sons have the misfortune
of bad servants; but 1 believe tiiat nobody can
imagine, that his ronjcsty hath any such mi-
nisters. And tlien obstTve, what have the
king's counsel opened, with respect to the pre-
sent ministers of his msjesty ? What evidence
have they given of the dil'endant^s reflecting
on these ministers in the Hague letter? I ap-
prehend, there bath none at all been given, but
what intirely depends upon the construction of
that paper itself; and therefore, in cases of iliis
kind, tlie question is, flow you are to construe
that paper, especially when there is an infor-
mation therecn against any person supposed to
be the publisher thereof ? The gentlcmeu of the
other side have told you, that you are to un-
derstand it in the same souse as any other per-
son does
Trial ofRidtard FrahMin^ [652
a person, wherein facts are undertaken to be
proved, which if done, will subject the penoo
to punishment ; and that you are to find a ver-
dict according to the evidence laid before you;
for there is a great difference between one pe^
son's reading, understanding, and judging of jl;
for his own information, and anotber** doin^jc,
on a prosecution, in order to convict or aoqnt
the person charged : so that the question bat
is. Whether yoii think that the defendant ii
guilty of reflecting u])on the present ministos
of Great Britain, or not, upon the constructios
of that paper, and unon due consideration of
what follows ? Though 1 think be is not : for
you have heard mentioned to you, from ibe
stveral treaties oueih-d, as well as from .the
judge BO, becaose
but 1 apprehend you are not to |
aase h«re is a prosecution airaiost !
Hague letter itself, that there are several coorti
mentioned as well as Great Britain ; to wit,
Prussia, France, Spain, and Germany; and
that the words *' certain ministers" may liave t
reference to the ministers of one of those coorti,
and not to the court of Great Britain : and I.
hope you have a better opinion of his msiestv'f
present ministers of state, than to think tut
the expressions nre applicable to them; tod,
indeed, when you are to make a construolios
on that paper, you must consider, and jiufee
for yourselves, Whether these ministen de> .
serve such things to be said of them, or not F
And I hope you will be of the same opiniop ii
I am of ; which is, that they deserve thein HoL
In the beginning of that Hague letter ibe
words are, " A rumour hath been for sane
time privately spread about, that a misuorfer-
standing will soon discover itself between tlie
allies of Seville ; and that certain ministers are
I endeavouring,"^:c. The gentlemen on the other
side are pleased to say, that these words " cf:\*M
ministers" must be understood of the mioisien
either of Great Britain, or France, or Spain; but
1 beg leave to say, that no such inference cut
be naturally drawn, or that no other mioisterf
of any other court can be intended but one of
these three. 1'heu the letter goes on, and
says, " that certain ministers liaviug at length
found out, that too close an union with Fraoee,
and a war upon the foot of the ti-eaty of Seiillei
is quite against the grain of the people, are
endeavouring to bring about an accommodatioa
with the emperor." The gentlemen saj*, that,
this must be applied to the ministers of*^ Great
Britain only. Gentlemen, I beHeve any ini*
nister of any court whatsoever must be of that
opinion, and that it is not fitting that there
should be a war on the foot of any treaty; and
I hope that all the miuisters of these thrci
courts are of the same opinion ; though lbs
gentlemen would fix it only upon the minister!
of Great Britain : nor can 1 see bow it can bi
said or applied to our ministers, when the fid*
lowing words are mentioned, to wit, '* that
certain ministers having at length found out*
that tot> close an union with France." Why
should this l>e mentioned us i| reason of ilf
being applicable to the ministers of Great Bri-
tain 'i Hare not we bad all this time an sU
prosecution against j liance, a dose alliance, with France? Aud ctt
Jut a Lihd.
DiCtbeoeil bv & riirtber or clocer a1-
Sn thai, 1 uiink, it ii more applicable
pislen of Dlher cnnrta. Genllemeo, I
a Utile notice or what the king's coua-
nitb mpect to time wurili " certain
." Ther told ^nu, that they coiiM
DdersUNKl to ntei to tlie minislenof
became tbat tlie«e words '■ certain
having' at 1en(rth found oul, that too
union frith France, and a war," fK. '
Itie minjatcni ol' France ; thontcb I
tl, a* 1 hare aaiU alreail j, that, t'rom
bey are more applicable lo the minis-
itlier court* than onr's. Then thej
that these worda " certain miniitera"
I refer to tbe ministers of H|Hiin, be-
the ill effects wliich, the letter nien-
ulij fallow, on enileavonrin^ to bring'
accommmlation with the emperor, one
[.is called a nrcemsry effect : " Ano-
estarj' effect (fur to 1 think 1 may call
h a measure, at iirescnt, will be a con-
of France and Kpain ; and a certain
ly hail- the mortification to see those
Is united against them more strongly
I* an alliance or treaty entered into he- ,
reat Urilain, France, and Spain P Was '
ij likelihood for iis to see such a con-
r Agvin, the kJDjt'a counsel said, that
be hard for us to tell what ministcm
eant by these expressions; to Itiis I
igwer, that I think i: will be very hard,
0 moke a publisher liable tn he punUh-
use he cannot explain or make o»l a
f foreign news sent him ; especially
e other side bath got nil IIk! treaties of
ic affairs in ihcir oivn custody ; for toy
know nothing about ihcin, and I am
t my client knows as little ; and Ihcre-
Hi't think that this piece of news is any
n on our present ministers, especially
gm|iare it with their actions imd inerils'i
teriuently you wonhl not, I hope, maho
1 ifnilly nf that, when yuu rnnuut sny,
t char^ is the kust applicable to them ;,
npe that you, and evciy jiei'son here,
better npinion of our present luinislers ',
refore hope, that yoa tvill ]iiit such a
ziiOB on it, as that it is not a reflecliob
n, and consequently that you will not
e defendant (ruilly of piibli>iliing any
'arnsi Ibem, tllnu^h Im cannot explain
ce of fareijrn uen<^. 'j'lie gcntlcmea of
tr side say, that there are other parts or
ions in the paper that (.rive a li^httoit.
Germauizrd patrinlH : I iloii't jircteni)
ntand tbe mcanin^r thereof, and I hope
U as iilile pretend thereto : they said,
ho were' enemies lo the ministry ivcre
10; but as Uipy hnve (jircii nn cvidtnci.'
iyou arc not to tnke notice ul'it. A'^jin.
■;, Um these words; "000 immediate
A. D. 1731- [65*
elTeet may be tbe seixure of that vast pleilere
which Spain hath at this time b faer hands"
serve to explain and refer to Ibe court uf Great
Kritain, though they have given no eridenco
thereof; nor dot see why this should be ap*
ptieil to Great-Britain only, because there are
other courts or slalea that have consideraU*
stock* anil effects, that may be applicable
thereto. And then they mentioned another
thin^, which they wanted to make tbe ex-
preaaion refer (o Great Britain, wliich is, " that
the ministera had been undoing wliat they had
been doing for tire years past;" which ihej
say carries it back ro tlie treaty of Hanorer,
entered into in September, 17SS: but I think it
proprr to remark to you, that the ifenllemen
iheraaeUe* bate acquainted you, that, about
tbat time, the Dutch were a* much dissatisfied
as we were; and therefore I think it is hard
to conjecture whose ministers are meant by
thai expression. Gentlemen, i sliall not trou'
hie you with futiherobnerTations on tbat paper;
hut leare it lo your own miisiileraljon : only
observe, though the Linir's counsel were
pleased to say, that tbe Hague letter was of an
English growth, yet they have not proved it
lo be BO, nor have Ibev told you wlin is the
author of it; though I think, from the imgrart
of it, it plainly appears to be of a fbreini
growth, and is placed under the article of to-
reign new* : and we con prove, that (if we had
not been deprived of the means of doing it) the
letter came ffom abroad a* a piece of f(irei>,rn
news : for yoa are to ooiiiider, that when the
deleoilant was sriietf upon thai account, the
pereons employed tlierein broke open his sera-
lore, and aearched his pockeU, and took awey,
in a' most uawarraatable manner, his papen
and letters, and other things, which Ihey still
retain ; and ainougiit the rest, this Hng'iie let*
tpr, which has deprived him of some [isrt of his
defence, by disabling hiro lo produce that let-
ter, though he is cxpectEd lo produce that ori-
Rinul letter still, wliich is impossible to be done
now ; therefore we expect, when you coniider
these circumstances, tbat you will, in point of
eridcnce, cxjiect lesa from us, and more from
them. 1 shall not trouble you, at present, any
further. Aly lord, 1 apprehend Ihcy have
liiilcd in the descriptinn uf their pretended
libel ; they hare iitiled it a certain false, scan-
dalous, and seilitiuus libel, {intituled, S' 335,
The Country Journal ; or, ihc Crali-imaii, by
Caleb D'Anvers, Sec.) I apprehend thai Ibis
number 935, being at the cml of the paper,
cannot be the title, or any part of it ; ] believe
there have been some precedents to the con-
L. C. J. J don't know how you, nr any
olher person, can distinguish one Journal from
another after a belter manner ; I shall not go
ihcopiuiun of^those before me; if you think
otherwise, you know where to apply io.
655]
5 GEORGE IL
Trial qfRie^rd FranckUn^
is the perpon that iinow mere immediately
atandiDg before vou, and ooocerned iu this pro-
aecutiou ; ^et I thiokit is ootcoufined to him
ooly, hut will extend to tbioga of a more public
nature, and consequently to tlie public in
geoersj ; 1 mean the suppretsion ot'the liberty
of the press, which liberty balh been always
esteemed as a great privilege* and of great ad-
vantage to this aation : that this prosecntiuo is
of sudi extent, will appear from the paper itself
complained of, anu the evidence relating
thereto. The case hath been fully opened by
the gentlemen on the other side, with many
aggravations pretended to be attending it ; and
toMe aggravations are not confined to this
|»aper only, but extend to all the other news-
papers in general: and should I have the
liberty to mention the common opinion of man-
kindi with relation to this weekly Journal, I
believe that assertion of its being a false, scan-
dalous, and seditious paper, would be thought
groundless ; but that it nath tended rery much
to their satisfaction, in foreign and home af-
fairs. But we are now oonniied to this paper,
which is dated the 9d of January, 1780.
Gentlemen, this paper contains a paragraph of
foreign news, or intelligence; lor such are
oftentiflMS of use to those who deal in foreign
trade : now, this fiireign intelligence complained
of, and for which the defendant is prosecuted,
u not positively aiiserted as a truth, out only as
a saying ; '* A rumour hath been for aome
time spread about privately,*' &c. Besides,
it is added in the conclusion thereof, ** I cannot
take upon me to justify the truth of this report :
but, as it hath been pretty confidently buzseU
about, J thoujfht proper to let you know what
is said ution it ; and if it should appear to have
any foundation, you may expect to hear further
from me on the subject.*' Gentlemen, the in-
formation contains two charges, with regard to
this paper : the first is, for spreading false
news ; and the second is, for publisliing a false,
scandalous aud seditious libel against his ma-
jesty's administnition of the government, and
against his principal ofiicers and miniss'ters of
state, and also against the Treaty of (Seville.
Gentlemen, as these things are only asserted
and averred in the information, by innuendoes,
it is incumbent on them to prove them : rud,
in order to this, they have produced this news-
|Niper, which is published for the entertainment
and use of tlie public, containing foreign and
iioine news, or atTairs ; among which there is a
paragraph which says, (as from the Hague)
** A rumour hath been for some time privately
spread about, and begins to gain credit here,
that a misunderstanding will soon discover itself
between the allies of Seville ; and that certain
ministers are endeavouring to bring about an
accommodation with the emperor.*' This is
all that is asserted ; for all the rest of the letter
are only as an induction, or inferences drawn
from the supposition that such*a piece of intelli-
gence is true ; and if so, then it says, that the
conduct of these certain ministers hath been
wrong bdbre, and hath occatioMd mineccsaary
expeaces to be laid out, and will oocaaii
ther expencea to be laid ont ; and ad«
am far from designing to insiDuate from
that an aocomnodation with the em(>er
wrong measure ; on the Gootrary^ 1 wial
been thought a right measure long
And in another part of it be says, ■* and \
it must be confessed to be very desirable
sent ; yet it seems to be attended wit
fatal consequences, and almost insuperal
ficolties." And then he mentions the
queoces ; as the interruption of trade, a
coiyunction of France and Spain ag^nst
tain court, in general, withotit naming il
adds some other efiects or consequeiioei
then these effects or consequencea are al
this supposition, that these certain minisi
bring about an accommodation with tin
peror ; though he adds, at the condw
the letter (as 1 said before) ** that J cannii
upon me to justify the truth of this report
as it hath been pretty confidently buzzed i
1 thought proper to let you know what ii
upon it ; and if it should appear to ban
foundation, you msjf expect to hear ft
from me on the suljgect." Now, gentk
tba question is, who are meant by these '
<* certain ministers f '' And by the way, tli
it is said in the information, that this pic
foreign news was a high reflection on hii
sent majesty, yet I cannot see any thing tl:
that hath the least tendency to such a r
tion ; nor is there indeed so much as tbe
** majesty", or " kin^ of Great-Britain
even the word <* Britam" itself, in any pi
that letter ; nor hath there been the less
dence offered to you, that it docs smy wsj
fleet on his majesty ; so that ibis does d<
under your consideration : and this beinj
aside, the next thing to be known is,
ministers these are that are meant by
words, *' and that certain ministers b(
at length found out, that too close an i
with France, and a war upon the foot o
Treaty of Seville, is quite agaiuKt the :
of tbe people, are endeavouring to 1
nbout an accomn^odation with the empc
The information hath averred, that by
words, <* certain tninislers," are iroplieil
meant, the principal olRcers and miniiiiters
ployed and entrusted by his present \m)\
but who are they then .' To be sure it wil
be said, that the paper does in the least me
them to be our present ministers ; or tbai
of you, I hope, hath such thoughts concei
them, as to believe that they arc guilty of
which is charged on them by the inforroa
nor do I think that they ore meant by <
parts of the paper ; because vou have I
already, that these things may be applied t
ministers of oilier courts and countries, as
as England or Great-Britain. Tlie ]Miper
left the menniug very much in the dark,
to a conjecture only ; for it may refer U
set of ministers as well as another. I
Sentlemen, that tho pretending to aaccrti
etermine whose ministcra are mcanl by i
Jbr a LibeL
•nd indeiiDite words, is at the best
onjpcturc. And \%ilh submission to uiy
rectiuns •ndjudpueut, 1 mustt«*ll yon,
h relation to scandal or slander, the
it duwu as a rule to be obseri'ed, that
s two tilings necessary : tUe first is,
person of wiiuni Uie blander is used or
u^lit to be certain, and on^bt not to be
•opie's imagination or conjeciure : and
thioif is, that the slander shall be evi-
I plain from the words themselfes, and
lorted by any innuendo ; I say, they
plain, positive, and direct You have
Ui, that ^ou are to understand this
a every common reader in a cofifee<
but I btf^ leave to ssy that you are
r when you are in a coffee- house, you
» liberty to conjecture and i^uess at the
; of a piece of news, as well as any
nvoD there ; and nobody can be sub-
I aoy panishment, if you are mifitakcn
but when you are here, in a court of
re, you must consider tliat you are
Nir oath, and that you are not to take
lerty to conjecture or guess at the
1^ of things ; because if you happen to
akeo in your conjecture, you will
itm gtiilty of the criminal charge
ie*is accused of, and subject him to the
WDt inflicted thereon ; and you arelike-
consider, as I hinted before, that, in
, the law requires that botli the person
id, and the scandalous words thcm-
ought to be certain, and not want in-
*■ to make them out ; and that an in-
oiigbt neither to alter, eiilart^e, or supply
le of the words, when doubtful or de-
Kiecause it would be unjust : And, in-
rhenercr an innuendo is allowed, in
ises, to explain a doubtful matter, it
be rather in favour of the person ac>
lan against him. especiully where the
ipokon m»y be applied and referred
rays than one : 80 here in fixing a
f 'on the words *' certdn mini:;lcrs,''
tlie information, by an innuendo, ex-
> be the principal oiiiccrs and ministers
ed by his present majesty, you are to
: tihethcr the^e wonis may not be ap-
ibe minihters of other courts and coun-
ind likewise to consider, whether these
" certain ministers,*' (so understood by
noation to be his mujestv's) are to be
Dod ur meant by ihostt otfiecrs or mi-
*naployed by hin majesty at sea or land ?
they Ilia ministers at home or abroad ;
tiller they are his oflicers civil or mili-
Vow« I say, suppose you should find
"airraph of foreign news to be a libel, or
at tlirowo UjKHi his m-^jcsty's otTiccrs
ntiterfi (as 1 hope ydu will not), can
' or declare ou oath, who are the par-
peraons thus slandered or defamed ?
ou any certain rule, by this paper to
oor judgmeDts ? Can you say, on voiir
Ih aoy certainty, whctlier these officers
Mera. so defamed, ara tliosa at hoiaa
. XVIf.
A. D. 17SL [658
or abroad, or civil or military ? Again, I rap-
pose, for argument sake, that though yoa
should be of opinion, that this piece of foreign
news is a libel or scandal upon his maje»ity'a
officers or ministers ; yet J submit it to you,
whether you can say, on your oaihs, that that
piece of news, contained m this Journal, does
amount to a false, scandalous, and seditious
libel, as it is asserted and averred, by an in-
nuendo's in the information ? And I submit it to
yon, with all deference to my lord's judgment
and directions, whether it is not incumbent on
them to prove, that that piece of foreign news
is false, scandalous, and seditious, beibre yoi<
can find it, by your verdict, to be so? And,
indeed, the chief thing in this paper, or
letter, that the defendant is charged with in
the information, is, " That a rumour hath been
for some time privately spread about, that cer-
tain ministers are endeavouring to bring about
an ac(:ommo<lation with the emperor." I say,
this is the chief thing that is mentioned in the
Hague letter ; though, in the conclusion of it,
it is said, ^< I cannot take upon me to justify
the truth of this report.'' For all the rest of
that letter (as I said before) are mentioned, or
set down, only by way of conclubion or infer-
ence, that such and such things will be the
effect or consequence, if these ** certain mi-
nistera" can bring about that accommodation
with the emperor. Now, let us take it either
way ; suppose that, at the time of the publi-
cation of this Hague letter, that this accom-
modation or treaty with the emprror had not
been bronf<;ht about ; how can it be said to
be false, and so on, when the Ifttter does not
affirm it for a truth ; but only snj's, ** that a
rumour hath been for some time privately
spread about, that certain miuisters are endea-
vouring to bring about an accommodation with
the emperor;" and adds, in thc» rcjijclasion of
it, ** that he cannot take upon him to justify
the trurh of this report." And then let 'us sup-
post', that they were endeavouring to bring
ab{)ut tiiat accommodation or trtaty with the
f'lnperor ; and that it was actually brought
about and concluded about the time ol the
publication of that letter, which was in tlie
year 1730; thin, to be sure, the allegation wvs
true, and therefore could not be faUt* anil scan*
dalous, or seditious. As to that nccoinmoda-
tion or treaty with the emi)eror's Iwing true, I
hope we shall give you full satisfaction, not-
wiihstandiiig the great difficult ies that the de-
fendant at present labours undLT' We shall
give you the f>est evidence that the nature of
things w ill a'lniit of, and which is always al-
lowed to h(* SMtlii'ient ; for there are some things
which are self rvid»nt. and tlu-re arc some things
that carry in them what every body knows.
L. C. J. I don't altoflrether know w!»at you
aim at : I should be glad to kno\v how you
would really understand these expressions.
And as for your saying, th^t ym% can prove
what is charged on'the dcfendnnt to be true,
it is iny opinion, that it in not material wbttkior
W9]
5 GEORGE II.
Trial of Richard FranelBti,
im
the facts charged in a libel be tnie or false, if
the prosecution is by indictment or inforaiation ;
and that writing or printing may be libellous,
though the scandal is not chara^l in direct
terms, but only ironically ; or ahliough there
be onl^ the initial letters of the name, or even
a fictitious name, if the jury plainly perceives
it to point at a particular person ; and that
not only the contriver and procurer, but even
the publisher of a a libel, are punishable ; and
that even a private man's character is not to be
- scanilalized, either directly or indirectly ; be-
cause there are remedies appointed by the law
in case he has injured any person, witiiuut ma-
liciously scandalizing him in his character :
And much less i^ a magistrate's, minister of
state, or other public person's character to be
stained either directly or indirectly ; because
the law hath pointed out another remedy than
publishing libels, if they have injured any per-
son, either in a public or private capacity ; and
the law always punishes libels, even among
private persons, because they flow from ma-
lice, and tend to create disturbance, (juarrels,
and revenge between them, their famdies and
Icindred, and disturb the public peace : And the
Jaw reckons it a greater offence when the libel
^is pointed at persons in a public capacity, as it
is a reproach to the government to have cor-
rupt magistrates, &c. substituted by bis ma-
jesty, and tends to sow sedition, and disturb
the peace of the kingdom : Therefore, I shall
not here allow of any evidence to prove that
the matters charged in the libel are true ; for f
am only abiding bj^ what have been formerly
done, in other cases of the like nature. If you
think it wrong, apply to the Court, and tJiey
will do you justice.
Mr. Booile. My lord, then I must submit it
to your lordship, \vhctlier this will not tend to
the utter suppression of the liberty of the press,
which hath been so bcncticial to the nation in
general. And, my lorl, 1 humbly apprehend,
though a publisher of news happens to be mis-
taken in what he publishes, it cannot be called
malicious nor seditious, especially when no
purticular person is mentioned ; hut only an
4:rror, committed through ii^norance, or misre-
1 Presentation of his corrcspomlents. Aofciin, my
ord, if the defendant is not allon'cd to bring
in his evidence that some parts of his news are
Iruo ; then, if he is found pfnilty, he is lound
guill\ of all that is charged i>n bini in the in-
formation, thotit^h he is only guilty of part
th« reof. I think this evidence will be allowcil
between particular persons, with relation to
their private affairs ; for thoy will not be found
guilty of the whole, when they are only guilty
of a part ; and why should not the saniti be al-
iened wiih respect to puolic atfuirs? As the
Star Chamber is now abolished, I don't know
bow tar that doctrine may be adhered to. I
■hoold be clad to have one instance or autho-
rity of this, and of there being no need to prove
■ewstobe true: and also where a publisher
•r Bcws it not allowed to ny that thU piece of
news is true, becaose it relatee to the paUic af
fairs of the nation. Is there no diatmctioo K
be made between false news and true news;
and cannot we now animadvert, or take notin
of public affairs, and insert them in the papain
as well aa formerly 7 If thiK is the case, it nV
be of dangerous and fatal coneequence iisM,
if matters of state, or public affairs, are Btlti
be meddled with, or inserted in the Dewa-napoi,
notwithstanding they are tme, but at toe pail
of him that docs it ? They may as well, it
once, take away the liberty of the press ; Hid
then we shall all live in darkness and ignoraec^
which may occasion disord^ enough in thi
nation. Therefore, I submit it to yonr knl-
sliip, whether this will not be^f daoniMi
consequence, to punish a person for pobushi^
true news as well as false ; and whether it cm
be justly said in the information, that the li>
fendant mtended to publish false news?
Mr. Strange. My lord, 1 beg leave to CiR a
witness or two. It was insinuated, by ik
gentlemen on the other side, that the eztnctif
the Hague letter was of the growth of ov
own country ; and put it upon us to prove tkit
it came from the Hague, by producing Um
letter itself. My lord, in order to take offtbt
imputation, it will be necessary to shew, tfaH
they have put it out of onr power to do «;
therefore our evidence will be, m the first plMS^
to shew, tliat when the defendant, Mr. Fraodt-
lin, was taken into cn^ttody by the messengm,
they broke open the defendant's scnitoire;
and, I think, they also searcheil his podcfti,
and took away his papers, and among whidi
were letters, and this amongst the rest. Tb»
next part of our evidence shall be to prove, tt
have btien oi>ened, that we have poblished trot
news, and not false, as is charged in tlie info^
mation; and, indeed, the information o«|?lrt
rather to have been for forestalling true oeAii
and not for publishio>; false news; for the en-
deavouring to brnig about that accommodatiM
with the emperor took effect : for, my lord, Vt
will sheW) that we applied in a public mannert
that the defendant might be at libert}' to take
copies of the treaties of Hanover, Seville, aiid
Vienna, in order to make use of them at bil
trial; and when we had taken all proper mt*
tbmis to have copies of them, we were toldtbit
the treaty of Vienna was a secret one, andmC
yot made public, and consequently notentvllei
in any of the public offices ; and that no copy
could be given of it, to produce in court:
when we have proved this, we hope it willbl
sufficient to shew, tliat we have not published
false news, as charged in the information ; M*
peri&lly as we have doiie all that can be dmMji
in order to produce a copy thereof.
Call William Ayers, (\^'ho appears.)
Air. Strange. Do j'ou know the defaMfan^
Mr. Frnnckhn? — Ay:rs. Yes.
!^lr. Strange, Were you present when be mi
taken into custody, for publishing the CraRl
man th« ^ of January, 17S0 ? ,
Jyen, Yei.
tei2
JbraUleL
A. D. 17SL
[6G1
Mr. Sirtmge^ Will yoa gm an accoant of
what happened P
Jwen. The meaaengen came to my hooae,
§m i was a oooataUe, and desired my aasis-
taaea, to so with Ihem to Mr. Francklin'a,>
which 1 did ; and they aearched for papers in
lii hpwae and ahop, and they broke open bis
■Btoire, and took away what papers they could
' ; and Mr. Franokfio deaired them to leave
t •f the papers, because they would be of
"1 to him, but not to them; but they
not, bot took them away.
Mr. Strange, Did he endearour to save his
fera aa much as he could ?
Jlpcrs, He did not ; but his wife endeaTOur-
do it, by snatching at them, though to no
Siran^e. Did they search bis pockets?
- ^cn. I did not obserye ihem do that.
lu. Strange, Did they suffer him to take an
iMMBt of these papers, in order to know what
Iknvere? — Ayers. No.
m. Strange, Do you know what they did
Wlh these papers? — Ayers, No.
Mr. Strange, Did you go along with them ?
Jof€r$, Yea*
|fr. Strange, Did you know they were mea-
^ Jjftri, Yea ; he shewed me his authority,
■dtoU me that he was the kinp^'s messenger.
Mr. Sirange, Hath Blr. Francklin had
im ipin ? — Avers, 1 believe not.
Mb Strange. Hath he asked for them ?
4wMi 1 know not.
■ Hr.&roiiige. Were they sealed up or not ?
Am- I cannot remember that.
wu Strange, Was Mr. Francklin desired to
9Alk aeal to them ?
Jfin. i cannot he sure ; but 1 believe he
taait deaired to do so.
Mr. Strange, Where were these papers
kmdt
Ayert. I think they were in the one end of
Atahop; they were wrapped up in a bundle.
Mb* Strange, Was the inside of them print-
^t'^yen, 1 know not.
Mr. Strange. Call Thomas Rawliua. (Who
Att, Gen, My lord, I find tliat they are to
ol this witness to prove that they* desired
Mpwa of the Treaties ; which is to no purpose,
IM eannot be allowed.
L,C.J. 1 am very well satisfied, that I can-
M admit it.
Mr. Strange, My lord, it is only to shew,
tetbe Hague letter was not a piece of false
Att, Gen, BIy lord, did ever any roan think
t aecsBsary to prove every part of the libel,
vboi it is not material whether the matter, or
mdahms words, or news in the libel, be true
• Use, or charged in direct terms or not ; or
vktther the persoiw be named or only pointed
i^ia have been aheady hinted ; though Mr.
Bnila h«a called on roe to shew some autho-
Sf ar piceedent for some of these things ? I
■grithal on tha cases mentioned iu the 5th
of Coke's Reports, p. 125, and also in Ho-
hart's Iteports, p. 815, and 5th of Modem Re-
ports, p. 167, and Qth of Coke's Reports, p. 59.
The first says. That every libel is made either
against a private roan or against a magistrate, or
public peraon : if it be made against a private per-
son, it deserves a severe punishment ; and it it be
made against a magistrate, or other public per-
son, that h still a greater offence, and dncrvea
a greater punishment ; because this concerns
not only the breach of the peace, but is a scan-
dal to the government. The other Reports
take notice of the other points which 1 hava
mentioned : and 1 must say, that it would ba
the most absurd thing in the world to imagine,
that the law had taken a better care of the cha-
racter of a private person, than ofa magistrate,
or public person, employed and entrusted by
bis majesty in the affairs of state. Therefore,
I submit it to your lordship, whether such an
evidence, to prove that the news published is
true, ought to be admitted.
L, C.J. I have given Mr. Bootle my opi-
nion already about it ; and if it is not accordinip
to their liking, they know where to apply to
have it rectified.
Air. Bootle, My lord, in effect it hath been
called an absurdity to think, that speaking the
truth of any magistrate, or other public person,
in the news, can go unpunislie<l ; because if
that magistrate or public person have done any
injury, then it waa said, that there is a remedy
provided another way than by publicly expos-
ing him, and defaming his character ; as well
as there is a remedy provided for having aatis-
faction of a private person for any injury dona
by him, without scandalizing him, directly or
indirectly, in any public paper. But I should
be glad to know how it muU be gone about :
for example, here is a piincipal minister of
state, that hath injured a person that is a pub-
lisher of a paper ; where can he have redress,
supposing the parliament not sitting ?
L. C. J. I am of the same opinion as before.
SoL Gen, I thought, that reallv such a thing
as that would nut nave been taken notice of;
because it is plain to every person, that we
have a remedy against a minister of state, aa
well as against any other man, without det'am«
ing him publicly ; and likewise any author,
printer, or publi&her, or other person, may ap-
ply to a proper place for a remeily against him,
if they think, that any court or jury, have noi
done them justice.
Mr. HocL My lord, 1 beg leave to sajr a fevr
words on the defendant*8 behalf. It is well
known, that the design of this paper of tha
Craftsman, which is publisted weekly, is to
entertain and benefit the public, and I believe il
has answered these ends: And I hope the jury
will consider the intention thereof, with the cir-
cumstances and inconveniences that the printer
or publisher of newspapers lie under ; and I
ho|ie you will consider the defendant only as a
collector of news from all parts of the country,
and likewise from foreign parts, for the ad-
Tsotageof those people here ihaitcadAV^
96S]
i GEORGE II.
Trial of Richard Fraticklin,
c«
from those parts ; anil that it is possible for
the (Jet'endaDt's correspondents, after all the care
they liave taken, sometimes to be a little mis-
taken in their intelligence, or not so correct in
wording them as they oufi^ht or might be, with-
out any intention or malicious design of injury
being one by the words themselves, iind as thi
stand in the paper abstracted from the i
Duenilos ; and 1 lio say, that it will be iropo
sible to 6nd it a libel on our present iiiini»tei
if you judge of it so; for there are no sue
words tuerein as the ministers of Great- Britaii
to any person ; and therefore, if such thiugi^ I believe there are no less than thirty seven ■
were to be always punctually and precisely | nuenilos in this int()rmation, and you caiw
scanned, and the printers and publishers thereof • find it a libel when stuffed with these inouendQ
Erosecuted, an<l subjected to punishment, it will j Gentlemen, in the former part of it, yoa wi
e of very dangerous consequence ^ because we i be please<l to observe, that they say, thatti
should not have any intelligence or news- ' defendant is a constant publisher of these libeh
papers at all, and consequently be ignorant of ! and yet they have not proved that so much i
what happens daily at home or abroad, and one of them was ever sold by the defeodsi
thereby occasion an interruption, in trade so be- himself. And, gentlemen, with respect to tt
neficial to this nation. Besides, it is hoped^that , innuondos, it is to be observed, that there vn
you will consider, that this piece of news, in
the Hague letter, is not laid down as a truth
to he depended upon, but only as a rumour that
had been spread about in that place : And the
writer of the letter adds, in the conclusion
thereof, that he docs not take upon him to
justify Uiis report ; and that if it should appear
to have any fuuudation, he should hear further
from him. Again you will consider, as have
been already mentioned to you, that the parts
of the same are applicable to other courts, and
that it cannot be applicable to Great- Britain, or
its ministers, without innuendoes, which are
not to bo used in prosecutions for slander or
scandalous words. Also consider, that they
oould not draw an innuendo iu the information
to include his present msjesty ; nor have his
counsel pretemled to shew any evidence, that
the Hague letter had any tendency to reflect
that way ; and, indeed, the innuendo to include
his ministers is very far fetched, and very iniirli
forced. Besides, the writer of that letter di^es
seem to approve of these ccrtaih niiiiislers mea-
sures of endeavouring to bring about an ac-
commodation with the emperor, by saying,
*^ That it must be confessed, that these mea-
sures are very desirable at present." So that,
upon the whole, I cannot sec that the letter is
applicable to our ministers, or that it contains a
Ijoel upon them, or that it any ways answers
their character; and I hope, gentfemen, that
you will be of the same opinion in your verdict.
Mr. Taylor. My lord, I hope your lord^Iiip
will likewise indulge me wiih a very few words
on the behalf of the defendant : As the go-
vernment is concerned in this cause, so the
liberty of the subject is also greatly concerned
therein. The facts which you, gentlemen, are
to try, are, w ht-ther the defendant, Mr. Frnnck-
lin, printed and published this paper ; and whe-
a famous cause in king Charles the second
time. In the 14th May, 1669, there wis
Writ of Error, and the judgment or sentencen
versed; and their lordbihips declared, that in
nuendos ought not to be allowed. Nor are yo
to understand it here, on oath, as you may i
in a coffee-house by conjectures; therefore
hope, upon consideration of these things, tbi
you will not find this piece of news a lilwl.
Ate. Gen. My lord, I beg leave to make i
short reply, not for what they have said,Dorfii
our want of proof; but I think some thisgi
Tery strange which they have insisted on. Ote
of them is, that there is not sufficient proof of
the pnblication of this pajier. As to that, 1 beg
leave to say, that I never saw the pubiicitioo
of a papermorr clearly proved ; and 1 beliere
they never saw it themselves in auy instaoce
whatsoever ; for your lordship may reineaiber.
that Mr. Smith, tiie first \%itnes8, swears, that
he applied to the defendant, Air. FranckliD
himself, when he was in his shop, and asked
for six Journals of that day, the 9lh of Januiiyt
1730, and two of the Saturday before; im
that the defendant ordered his servant, then is
the shop, to deliver them to iMr. Smith, whicli
he did ; and the servant received the inooey
for them ; nnd therefore his ordering his ler-
vant to deliver them, is the same as if he had
delivered them himself; there cannot be t
clearer proof. They make a scruple, becausfl
he did not ask particiilnrly by name for such i
Journal, though I think he usked to the saise
effect, by asking for six of his Journals of thai
day ; for the word »* his*' may take in the
words ** Country Journal, or Craftsman" be-
cause that is thu Journal which he prints and
sells; besides, have they done any thing m
their part to prove that other persons sold otbei
Journals of that name or otherwise ? or baM
ther you can, upou your oath, s:iy, that it is a | they offered auy thing to contradict or weaken
false, scandalous, and seditious liM ; and, for his evidence? Therefore 1 think t
that end, it \till be necessary that you take
the paper intolyour serious consideration, not as
it is inserted iu the information, with al grout
number of innueudos, but as it was originally ;
and see if it contains any scandalous reflections
ou onr present ministers particularly. Gentle-
men, it is not sufficient to say, that the infer-
mtion is a libel ; but you are tv judge of its
that our wit*
nf>s8 is the strongest for the king that can be
It was said that great inconveniences and dan-
gers might happen to publishers, if news wen
so scanned or siflted. As to that I think tftr)
publisher ought to be careful of what he pob*
fishes ; for it is no part of the printer or pab<
iisher's traile to scandalize whom they plesae
for that would be turning printing and boik<
665]
for a Libel.
A. D. 17S1.
[606
•elling into lUMllinnf ; nor it the liberty of the
MCie, which thev so much cry op, and siy is
u deo^^ of beiD^ utterly bupprated, to be
uimed into a Ucentious aod diiorderly abuse of
the pre«. Again, it hath appeared Mfore your
Mihip, with respect to the proof of the defeu-
iiBl'a imvik% the publisher, that there is not
«ly this witness's evidence thereof, (against
ihitreditof which no efidence hath been of-
faii) but there are other witnesses who con-
In his evidence, such as Mrs. Dodd and her
and Mrs. Pierce and hers, «»ho had
numbers at his shop weekly, and paid for
iM \ and that Mrs. Pierce used to hate about
M worth weekly ; it is likewise confirmed by
iecoUeetors ami servants at the Stamp-office.
AAcr ail this, can it be doubted that the defen-
kak is guilty of the publication of this paper,
MfseialTy when the defendant's counsel have
Hi eoutradicted them, or offered any thing to
iwiUate or weakeu their evidence? 1 take
Ae publication to be undeniabW proved ; and it
vsbM be but mis- spending of time to say any
■nt sn that head. The uezt thing is, whether
vcktve sufficiently proved that the pretended
Sijrae letter inserted in that paper is a libel as
Asrnd in the information ; as to that, 1 may
■I uat there hath not been so much as one
■^objection offered against the construction
sc ^l upon it, I mean of its being all applica-
Uc Is his present majesty, and his principal of-
iccfi and ministers of state ; 1 mean not one
if My weiif lit, or which has the least colour of
kdog sppiicable to any other court, country,
flrpersou what<;ocver. The words are ** cer-
tiin ministers." These are the persons that
Ibe pretended Hague letter chargts with per-
idy, ruining their country, *Sec. and want to
Ittfs a meaniut; put upon them ; that is to
By, to what court or country are they appli-
ttUe. Now, consider what is said of these
cvtaia ministers. The letter says, " A ru-
■mir bath been for some time spread abroad,
tbit t misunderstanding will soon discover it-
Klf between the allies of Seville ; and that
Mrtain ministers having at length found out,
Alt too close an union with France, and a war
■^ the foot of tlie treaty of Seville, is quite
ifaioti tlie grain of the people, nr(> cude;\roiir-
■i|; Is bring about an accommodation with the
Mperor." Now, gentlemen, you know that
*c allita of Seville are the king of Great-
Iritein and the French king, and the king of
^D. And then consider, that these certain
feiaiMers are charged with perfidy in breaking
te treaty, who, to be sure, must be one of
toe three courts, Great- Britain, France, or
R^D, who were empowered to make it ; for
Mother could be guilty of breaking it, but one
•f these three who made it: Now the letter
*nier tells us plainly, that it is neither the
■isHlera of France, nor the ministers of Spain,
te h« thus charged with |)erfidy in breaking
AitlKnty ; for be tells us, that one necessary
^' of Mch perfidy will be the conjunction
ud 8|wio ; and thst a certain court
have the lortiflcatiop to see these two
crowns miited* against them mora ttronglj
than ever ; This, as 1 said before, amounts to a
demonstration that ueithtr the muiisters of
France nor Spain are charge«l with that per-
fidy in breaking that treaty : If so, then tners
is but the ministers of one party lefi, to wit, of
Great-Britain ; and 1 must say, that it is as
plain as if the ministers of Great Britain bad
been in express words. Gentlemen, this is no
forcetl nor strained innuendo ; but an innuendo
that naturally and necessarily flows of itself,
and which yon all cannot but presently draw.
Gentlemen, there are other parts of the letter,
which serve to support and confirm this
construction, which 1 mentioned in the
opening ; such as these, to wit, tliat an-
other effect of that perfidy would be the
seizure of that vast pledge, which Spain
hath at this time in her hands; and that toese
ministers were undoing every thing they had
been doing for ^s^ years past ; which carries it
back to September, 1725, when the treaty of
Hanover was concluded. It was said, that
you must not understand it as you would do in
a cofiee-house, because of its dangerous con»
sequences. To which I answer, That there
is no more danger in understanding things here
than there, if they are plain (as this is), and do
but exercise their sense and reason in both
places. Gentlemen, if you acquit the defen-
dant, you must say on your oath, that the let-
ter-wnter did not mean the ministers of Great
Britain ; and can you say that he did not, and
that it is not applicaMe to them? I told yon
in the opening to litis or the like effect : that
writiug or printing may be a lil>el, though the
pei-sons are not particularly named therein ;
and that it is no hard matter to sraudaliKe
any person by circumlocution, fictitious names,
<Scc. as plaiuly to be understood as if their
names \\ crc particularly mentioned ; and that
the law construes them accordingly, by innu-
emlos, because they cannot be otherwise con-
strued ; and this hath been the practice of the
law for some hundreds of years ; and there-
fore the defend.inrs counsel telling you that it
is doing people harm to bring things in by in-
nuendos, is only amusing you with words; for
it is a plain auu a just law, and the law would
be detective, it* it were otherwise, and people
would be always defaming one another by the
like methods. ' I told you of the case ot Mr.
Mist's Journal, in 1728: it was a scandalous
libel, under the fif-titious names of Ksreff and
So)>hi ; which the jury understood plainly to
be !j0, and brought in their verdict accordingly
against the printer and publisher thereof.* i
* « This letter, dated Auif. S4, 1728, signed
Amos Dndge, was supposed to be written by
the late Philip dukeot Wharton ; wherein were
contained, under the characters of Mirewcis,
Esreff, and Sophi, many scandalous reflec-
tions and odious comparis'.ms, between his late
majesty king George 2, of glorious memory,
and the Pretender. It was so virulent a letter,
that it was presented by the grand juries of
Trial of Richard Francklitif
[669
7 X- Ma.beirf
— t • - 14 I ct'Uia
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--3115 una. fi^-
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tbe
raider
«^c " iaJ, in-
^r^ Titf =.t this
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. . •*. ^i:..'^ of the
.fc ,-»A cj^lL J(»hn
...« :<\*. i}icu xn lui'oT-
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,. .V i>>*i»»tj; -i libel, en-
.......u N 1 To, dated
.'^ 'a.H*.*, scatida-
...> .HI t!s lute und
, . <^ >ti:«M'« (uirallels,
.^ . a h:>> u'.siiiiialing
^.. .' J lJuur ini-
^ •., Vo support
<» Tonl and
•v.l ill llie
> ■ «a;il C'iarke
t <.! .issistcd in
^ I i^'aiiiM-luiie;
t .sv.i'^iTs) the
. ..•«, a piliiter,
... I %toiUiii^ off
^. V." .1. '^o onlf red,
. ,■ j.i\ of ilicm,
. .'. ^ u'll toijrllicr.
^ .. -.xxK in his ex-
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Ui< pulilish-
t •, .v*i .. \^M* how^Ui
. ^. . . M .'.a u> him by
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.... * . ^l ivuiis and
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..Ji ihol'ourt
: nuWinjJlhe
,v: tiulhi'inl-
;■• 'lint Mork-
» •.,• iMidtTsland
.K ihar-u'ters;
, , »;..iionai;ttinst
« K i .»»'.taii'»w»'r**di
X oonsiidiTinyf,
. . *\i r.^vn an iw-
V. '.'iniinuj and
*»»••> pou-d, that
\ >
* *
k « .
: way of construinjir it* A^in, it is lak), that
this cannot be a libel, though the words were
understood to l>e applicable to the persons men-
tioned in the infurmatioo ; because what is af-
firmed in the letter, about the accommodation or
treaty with the emperor, can be proved to be
true : as to that, 1 must say, that it is no mit-
ter whether the words lie true or false, if it is
published as a libel, and the prosecution be fay
indictment or information. Then it halb been
said, that the defendant is a publisher of news,
and that this letter was sent to him from the
llagrue, and that he inserted it as such in bis
Journal : as to that, I do say, that if this letter
had bcou really sent to him from the Hague,
it would be still a libel ; because it is not in his
power to publish what he pleases, or what may
he assisted in composine^ it ; and said, as h9
was about it, * Mr. Wolfe and I, and tberert
* of us, will all be taken up for this journal.'
The defendant's counsel insisted that composing
was not printing ; to which the attorney -ge«
neral answered, that though, abstractly con-
sidered, it was nut the very act, yet it was an
act preparatory to it ; and Mr. Roberti, a
printer, being examined, declared, it was not
only part, but the principal part of printing;
upon which the objection was over-rulol.
Another point was also objected to; that is
there were two compositors, each havincf a se-
parate form allotted to compose, one of tbem
could not be charged willi the whole libd,
as laid i\\ the information: to which the Court
ansHorod, that v\hen a erime is per|)etrated by
iinirv tiiau ():'.e, and by joint consent, any one
oftlieni, bring guilty of part, is guilty of the
uliole. Tile (ieftndunt was ihcreforc foiiini
;rnilty of priuting the said libel; but not of
piddisliing it.
*• Joseph Carter (Wolfe's apprentice) was
also tried on the ssiid information ; and the eii-
denee a;*uinst him being the same as before, hi
was found guilty of printing only.
** May IDlh following, being the last day of
the term, the following persons, for being con-
cerned id printing and publishing Mist's Jour-
nal of .August 'iliU, received judgment as fol-
lows :
*' John Clarke, the pressman, for printing
and [Hiblibhing (be said libel, to stand thrice in
the |i;liory ; once at the Uoyal Exchange, once
at TiMiiple-bar, and once atCharing-CrObs; to
be con:milted lo Hridtwell for six months, and
there kept to bard labour.
*^ Robert Rnell, the compositor, for printing
the said bbel, to stand twice in the pillory, once
at the Uoyal IDxcbange, and once at Charing*
Cross ; und to be committed to liridcwell fur
six uionilis, aitd there to be kept to hard labour.
*' Joseph Carter, the apprentice, for printing
tlie suid libel, to go round the four courts in
Wistminster-llull, on the first day of next
term, uith a paper fixed upon his head, de-
noting his olieiice ; to be sent to Uridewell for
one month, and kept t(» hard labour.*' 5Ionthly
Chronicle for 17 ^U, ITU9. iontur £Uition»
6BS]
Jbr a Ltb^»
he eouilrQcd defiimatory, let it come from what
qnaiter it will, whether from abroad or at home;
fcr, as I raid before, k is no part of his trade to
WBuM&i^ whom he pleases. But they have Dot
cvoyiroTed, that that letter was sent to him from
the dagve : all that tliej have done it, that they
hafc called a constable, who says, that the
leers searched for papers, and took away
; Dot does not say that they were written
or that this llai^iie letter was among
no, the papers he means were only
criminal Craftsman. Besides, if any
thiDfif had been seized, such as that
fnCiuded Hag^ae letter, upon application made
la his majesty, or the secretaries, he might
hiTe htd them returned ; but the gentlemen
4» not pretend that they made any such appli-
otiMi. Then they say, if this piece of news
bdcemed as a libel, it will have a bad cunse-
fmee ; for no person will print any news at
il,aad then the people will not know how
"" or alTairs go : this is very extraordinary,
for the defendant is not charged in the
tion for publishing the piece of pre-
kaded news to wit, *< That a rumour hath for
wmt time privately been spread about," &c.
Kt ; hnt he is charged for making an applica-
tiia, and saying, that the ministers arc guilty
«f perfidy, and ruining their country, dice.
Ktit, seatlemen, 1 would have you tool»erve,
tetit m DO part of your office to consider or de-
tBraiae, whether this Hague letter is a libel or
Ht ^though the defendant's counsel insinuated
Ihlit was a part thereof) : you are only to con-
aiv, whether the expressions therein are
MM to refer to the present king and his mi-
■iOB, and are properly applicable to them,
fttabetlier this amounts to a libel or crime,
k «|y the office of the Court to determine :
Ar, suppose a man was accused of felony, the
CSiNirt will determine whether it amounts to it,
•root It is so in high-treason, and all inisde-
■ttnoars, in which the jury is to determine
tittfiicts, and the judges are to determine the
criMeand punisbmenr, as lieing matters of law :
■Ml it is confounding the office of the Court,
and of the jury, to pretend to do otherwise ;
tad it is likewise a perverting of the law : this
1 ay, with great submission to your lordship.
Tbeo it was said, that there was nothing m
that Hagne letter, that did relate to or imply
lay reflection upon his present majesty : but,
fntleinen, that yen may not be led into any
WTorbysuch an n^sertion, and distinction be-
tween the king and his ministers,- i would have
M to consider, ihnt here is a charge on the
Bag's mini&ters for mal- administration, and
Ar carrying on a treaty , iihich occasions per-
fty, &c. Now, I would ask you, can treaties
ke carried on without hi^ majesty's direction?
iad therefore I say, that such a charge as
tint is a libel on the king himself, as well as
ft bis ministers, who arc empowered and ili-
HOed by him. The same may be said with
Mpect to magistrates and judges ; for they are
iagiaally of iiis appointment, and the courts
*^Uia king's, and he makes them, and is at
A. ». YJit: [67(f
the head of them, and without him they cannoO
subsist : so that I say, that a reflection on tha
king's ministers, officers, magistrates, 6cc. is a
high reflection on the king himself. Thera
have been several other things mentioned^
which I shall not touch at, because 1 think
they are not material. There was another
thing mentioned, which was, that if this
Hague letter was construed a libel, it would
tend to the utter destruction of the liberty of
the press. BIy lord, I am really at a loss to
know what sort of liberty they mean by it ; I
hope they don't mean a licentious and an un-
bounded liberty, to libel and scandalize his ma-
jesty, or his principal officers and ministers of
state, or his magistrates, or even any of tha
meanest of his subjects, whenever tbey think
fit ; for that would be a dau^rous liberty in-
deed, and be of a Tcry pernicious consequence.
Gentlemen, I would have vou to consider, thai
even the prerogatives of tue king are founded
on the law and limited by it, and so are all
other things relating to his subjects ; and it
cannot be supposed, that a printer only is ex-
empted, and at liberty to use his press ibr
what purposes he pleases ; if he is, I desira
now, that the defendant's counsel would poini
out that law : no, the law is not so absurd aa
to allow such a liberty of the press. The
liberty meant, is to be understood of a legal
one: he may lawfully print and publish what
belongs to his own trade ; but he is not to publish
any thing reflecting on the character, and re-
putation, and administration of his majesty, ar
his ministers ; nor yet to stain the character or
reputation of any of his subjects ; for, aa I said
before, that to scandalize and libel people is no
part of his trade, so [ say, that it is only that
liberty of the press, which he is to use, that
is regulated by law and subjected to it ; and if
he breaks that law, or exceeds that liberty of
the press, he is to be punished for it, as well
as for breaking other laws or liberties. And,
gentlqpen, though it has lieen insinuated to
yuu, by the other side, that the making of such
thiugs a lil)€l came from the Star-Cliamber ;
yet I must tell you, that printing such defa-
matory expressions, or slanderous news, was
deemed a libel, and punished accordingly, long
before the StarChambtir. It is a law made in
1275, in the third of king Edward 1, infilled.
An Act that none shall report slanderous
news, whereby discord may arise. The words
of that law are, ** Forasmuch as there have
been oftentimes found, in the country, devisors
of tales, whereby discord, or occasion of dis-
cord, hath many times arisen between tha
king and his people, or irreat men of this
realm ; for the damage that hath and may
thereof ensue, it is commnndeil, that from
henceforth none be so hardy to tell or publish
any false news or talcs, ulierrby discord, or
occasion of discord, or slander, may grow be-
tween the king and his people, or the grent
men of the realm ; and he that do so, shall be
taken and kept in prison," &c. So, gentle-
men, you see that this «i U\^V%\& ^^A %^
671]
S GEORGE n.
Trial of Richard FrancUin,
[m
laiv, or one that came from the Star-Cbamher ;
bat oue that has been almost of 500 years
standings; therefore I hope you will not suffer
yourselves to be amused by 'such thin^. That
court of the Star- Chamber punished without
juries ; but thoug'h juries were taken away, yet
the law remai ned the same as to libels and crimes:
80 I hope it appears to you to be very plain,
that the liberty of the press is limited and p^-
▼emed by law ; and that the law sets limits
both to the kingf and his subjects. Lastly, I
think it was said to this effect, that it would be
making' Mr. Francklin a great politician in the
world, to suppose that he knew any thing: of
the meanini? of that pretended Ha^ue letter
which he pnnted and published : as to that, I
think I may venture to say, that he could not
nor cannot be ignorant of the meaninpf thereof,
because it is plain to any common reader, that
by the words < certain ministers,' are and must
be meant the ministers of Great-Britain : and
I believe that the treaties of Hanover and
8eTille have been heard of, and known by you
all ; and that you likewise have heani, and
know, that there have been differences between
Great-Britain and Spain. 80, gentlemen, I
submit it to you, whether you are not con-
vinced in your consciences, that Mr. Francklin,
the defendant, is the publisher of that Crafls-
inan, the Snd of January last, wherein the
pretended Hacnie letter is inserted; and se-
condly, Whether you are not likewise con-
vinced, that these expressions in tiiat letter, to
wit, «« certain court," and •* certain ministers,"
and what is spoken against them, are to be un-
derstood of tne court and ministers of Great
Britain ? These are the two things now under
your consideration ; for as to the question,
whether these words amount to a libel or not,
you have nothing to do with that, it being the
office of the Court to determine whether they
do, or do not. So we doubt not but you will
^ive your verdict according to your c<instierice ;
and do justice between the kint^ and the dcirn-
dant, which is all that is required of yuu. >Iy
lord, the importance of the cause liath occa-
sioned me to take up much of your time, which
I hope your lordship will excuse.
L. C. J, Gentlemen of the jury, this is an
information, wherein the kiutr is ptaiutiff, and
Mr. Francklin defendant, tor printinsrand pub-
lishing the Country Journ^il or Crahsnmn, the
2d of January 1730, wherein is inserted an ex-
tract of a private letter from tiie 2£a:rue, re-
flecting on his majesty and his principal ofH-
cers and mini»ters of state. In this iiijormuiion
or libel, there are three thi'ii'jfs to be consii'.ered,
whereof two by you tlie jury, and one by tije
Court. The lirst thing uuiUt your eonsiilcm.
tion is, Whether the detendant, Mr. Fruiwk'iin,
is guilty of the pulilication of thix Crafisniau
or not? The second is. Whether the expres-
aioDS in that letter refer to his present majesty
and his principal officers and ministers of stale,
and are applicable to ihem or noti* Tiiis is the
chief ihing in the information ; for if you think
that theve defamatory expressions arc uot ap-
plicable to them, then the defetidaiit it not
guilty of what is charged upon hitn ; but if
yoa think that they are applicable to then,
then the defendant is g'uiltv thereof; upon thh
supposition, that you fino him to lie the pifc-
lisher of that paper. These are the twooMt-
tersof fact that come under your considerrtn;
and of which you are proper judgm. Bat
then there is a third thing, to wit, Wbetfacr
these defamatory expressions amount to a liM
or not ? This does not belong to the offiee i>f
the jury, but to the office of tlie Court; be-
cause it is a matter of law, and not of fact ; ud
of which the Court are the only proper judges;*
and there is redress to be had at another plaor,
if either of the parties are not satisfied ; for we
are not to invade one another's province, u h
now of late a notion among tome people vbo
ought to know better; for matters of law ud
matters of fact are never to be confounded. Asta
tha first thing, whether the defendant is gnillj
of the publication of that Craftsman which h
under your consideration. And here in tbii
and the second head I shall not be looff, be-
cause things have been so often repeated, and
all sorts of observations made on both lUei
that it is possible to be made on this occasioo;
and my endeavours shall be to hinder yoa from
running away with notions which are not rifsfat
As to the evidence offered to prove the defenaot
the publisher of that Craftsman, the plaintiff
connsel called one Air. Smith, against mhm
the defendant's counsel could not say nj
thing material. This Mr. Smith i;ives aott-
count, that on the 9th of January last, heweot
* ft is now by Statute 32 G. 3, c 60, «t*
tied, that the jury may give a general verdict
of iiuilty or Not Guilty upon the whole mittff
put to issue on the indictment or iufonnatioo.
See vol. 8, p. 36.
As to the contests which had arisen resped-
ing this matter, see the following Case of Jflba
Peter Zenger, and the Trials for state libfliia
the first thirty years of (leo. 3, particulii^J
those of Woodfall and of the dean ot St. Asaph*
It is observable that lord Mansfield, in givisjT
his judgment on the latter of those cases, quoted
from memory an old party ballad, which Wtf
published on occasion of an acquittal of the
CratUman. It appears by the recent pubiici-
tion of the eloquent speeches of lord crskisfy
vol. J, p. 375, that lord Mansfield by misre-
dial alt<!g^iber perverted the meanintr of ibt
passage which he thought he remembrrsi*
Thus lia/arlouy even with the ablest men ii
the |)ni(:t ice 4)f quotation from memory.
1 lie ri^^iit und duty of juries in such ciitt
has been very fully and ably discussed by 9tr»
Btiron Maseres, in the seeond volume of bil
* Additional Papers ct»»cerning the province m
C^uel>ec' (published in the }ear 1776) frMI
p. 395 to 4v25.
As to jiiil;;es controlling the verdict of 9l
jury, see in (his Collection, vol.0, pp. 9fft
992. 1013. Harringtou, Obs. or^Wett. pnmff§
and the authorities died in his Note («}• ^
7S]
Jor a LibeL
Mr. Fnuicklin'f iliop to buy some CraftnnaD
Joarnals ; be said he wanteil half a dozen of
It day, and two of the week before ; be savs,
ICO he came he found Mr. Francklin in bis
nm and asked him for half a dozen of his
arnab of that day, and two of the Saturday
bra; and that Mr. Francklin asked him
MB they were for ; who answered tliat they
■• for binmelf; and that Mr. Francklin
MbiiD if he sold them ai^in ; who answer-
It Tea ; and that atWwards Mr. Francklin
aisled to his servant, and told him to look out
koe Journals for him ; which he accordingly
ii ; and that he sold one of the Journals of
Kid of January aflrain to another person ; but
4are tie sold it he marked it ; and that Mr.
milk p^id his servant for these eight Journals,
ihiok he said, that the two Journals were
hHtof the 2d of January. Tliis evidence is
ivy positive ami full ; for he bought them in
k defendant's shop ; and the defendant's ser-
rist delivered them to him by his master's di-
rcctioD, and paid the servant for them ; which
ilia oodeni able proof of the defendant's being
ihepobiisher thereof; and nnless Mr. Smith
h wilfully forsworn, his evidence alone is suffi-
«ak Then the king's counsel went on, and
oiled other witnesses to prove the defendant
Iki pabUsher, Uiough I thought there was no
•eessMin for mora; but they produced other
ailansij (I shall not be long, or name every
•se). They produced Mrs. Dodd, who says,
tesbenseil to send her servant, Coram, to
Mr. Francklin's weekly for his Craftsman, or
CooDlry Journal ; and he brotiivlit them from
tkeace ; and these of the 3d of January among
Ae rest ; and gave the money to another ser-
ial, in onler to pay Mr. Francklin for them.
Omd teiUyou, that he went aliout a year and
I balf together, weekly, to Mr. Francklin's, for
faie Crallsinaii or Country Journals, and
knigfat thern into his mistress's shop ; and
tbine brought suuie of the Sd of January, and
hiaght no Couittry Journals of that day from
Wf scber place ; and that he had great quan-
of these Country Journals weekly. Mrs.
Rcrcesays, that she sent her man, David Da-
Hm, 10 Mr. Francklin's weekly, for some time,
fcrkis Country Journals, and for that of the
ttaf January among the rest; and had such
i qoaotity of them as came to about ll.
*iKly. "David Davies says, that he was
Mploved by Mrs. Pierce to fetch her Jour-
M| the Craftsman, from Mr. Francklin's ; and
ittof the 2d of January annong the rest ; and
frii the inoney for them to the amount of
4eat ll. weekly. Then they called an officer
if Ike Stamp-orijce, wlio says, that he regis-
IM thirty -eight advertisemenU that were in
fc Craftsman of the 2d of January last ; and
iM the account of the advcrlisements for that
of January came to 10^. i^s. So, gen-
, you are to consider whother or not you
■• saliJfted with the evidence prnduceil to
iMitlie defendant tube the publisher of that
MlBtaaD qf the Sd of January last. The
taitilmif wbieh you are to consider n^ whe-
TOL, XVIL
A. D. 1731. [674
ther the ezpretsions in that Hague letter, refer
to his present majesty and his principal officers
and ministers of state, and are applicable to
them as in the information or not ; for when
people's names are not set down at length, but
pointed at by circumlocntton, or pieces of
words, or by initial letters, &c. the law always
allows innuendosin informations, which €X«
plain and tell what the defendant meant by
them; and the law likewise allows juries to
give their verdict on oath, whether they think
that these dark, defamatory speeches have the
same meaning as mentioned in the informatioa
or not. The counsel for the king have gone on
and explained and applied these defamatory
expressions exactly as m the information ;- and
they have giren their arguments and reason^
for fio doing ; drawn from the several parts 9S
that letter, which I shall not trouble you with,
because they have been so oflen repeateil in
your hearing; 1 say, they have explained
them as mentioned in the inmrmation ; that is
to say, that by these defamatory expreationr,
arc meant his orescnt majesty and &is principal
officers and ministers of state ; and indeed they
must be applicable, and refer to them or to
somebody eise ; and if they do nieau them,
then 1 muBt say that they are very scandalous
and reflecting expressions ; because they
charge them with perfidy in breaking of trea-
ties, mining in a manner their country, &c. as
you may see at larse in the letter ; and it is
very evident that these treaties could not be
made without the knowledge and direction of
his majesty. The counsel for the defendant'
said, that these scandalous expressions could
not be understood to refer to his miyesty or his
ministers ; but they did not tell to whom they
referred ; I should have been glad to hav«
heard them do so ; so that you are to consider
of whom these defamatory expressions are
meant, or to whom they are ajtplicable ; and
as to the rule and manner of understandinjp
them, you are to do it, on oath, after the sam«
manner and way as you do privately by your*
selves, taking all the parts of the letter together.
I shall not repeat the several parts of it now
which the king's counsel did use, to shew that
Ihey were meant of his majesty and his mi«
nisters, because yon are to have the letter
along with you ; for it is plain, that the con*
struction <>l it depends on the words themselves
and their connection. Gentlemen, I have been
very Kliort in summing up the evidence ; and
laid aside the points of the law ; I mean, whe-
ther these defamatory expressions amount to a
libel or noi ; lircanse the Ci>art can only detcr-
mino that : and if not satisfactory to either of
the parties, there is a proper redress to be had
at another place, as I said before. There was
one thing more mentioncl by the defendant's
counsel, which wan, that there is no room to
think that letter libellous ; becinsc there could
he no malice supposed by inserting it in the
Craftsman, being only designed as a piece of
foreign news ; and that the latter part o£ the
letter qualifies it, by saying that the letter*
675]
9 GEORGE II.
Trial of John PHer Zenger,
[676
writer does not take upon him to justify the
truth of that re|K>rt ; but that will not do ;
fur the injury is the same to the persons scao-
dalized, whether the letter was inserted out of
mah'ce or not; besides, there is no knowioff or
profin^jT particular malice, otherwise than from
the act it&elf ; and therefore if the act imports
as much, it is sufficient; nor is he to take the
liberty to priutwhat he pleases ; for the liberty
of the press is only a legal liberty, such as the
law allows ; and not a licentious liberty.
Gentlemen, 1 tell you again, that I hare de-
signedly shortened things, because it bath
bAn so fully again and again laid before you.
But if there is any thing afterwards that you
want to know, after you have considered these
things, I desire you would acquaint me. So,
SinUemen, if you are sensible, and couTinced
at the defendant published tiiat Craftsman of
the 2d of January last ; and that the defamatory
expressions in the letter refer to the ministers
of Great Britain ;* then yoa Ooght to find tbt
defendant guilty ; but if von think 0lberwist|
then you ought not to Ana him g«iHj.
The Jury found the defendant gaihy of pi^
Ibhiog the said libel.f
The term following, Mr. Richard Fmndii
received sentence to pay a fine of lOOH, tsbt
imprisoned for one year, and to find seouiili
for his good behaviour for seven years ; hisasair
in 1,000^ penalty, and his two sureties in SOOL
each.
f This Hague letter was said to be wiillta
bv the late Henry lord viscount Bolingbiski;
£z Infer. Mr. R. Francklin. Former Editm,
[ In the case of Periy a. d. 1793, 5 Tens
Rep. 454, Air. Justice Builer read a nott of
proceedings relating to an endeavour to Mt
aside the verdict in this case* See a report of
the Trial of Perry infra*
490. The Trial of Mr. John Peter Zengeu, of New-York, PrintCTi
for printing and publishing a Libel against the Government;
before the Hon. James de Lancey, esq. Chief Justice of the
Province of New- York ; and the Hon, Frederick Phillipse^ esq.
second Judge ; at New-York, on August 4th : 9 Geokgk IL
A. D. 1735.*
JiH there was but one printer in the province
of New York, that printed a public news-pa-
per, 1 was in hopes, if 1 undertook to publisii
another, 1 might make it worth my while ;
and 1 soon found my hopes were not f^fround-
less. My first paper was printed, Nov.
6th, 1733, and 1 continued printing and pub-
lishiog of them, 1 thought to the satisfac-
tion of every body, till tlie Jsnuary follow-
ing; when the chief justice was yieased to
animadvert upon the doctrine of libels, hi a long
charge given in that term to the grand jury,
and aflerwards on the third Tuesday of Octo-
ber, 1734, was again pleased to charge the
grand jurv in the following words :
" Gentlemen, i shall conclude with reading
a paragraph or two out of the same book, con-
* Tliis Trial (or ratlier part oi' a trial) pub-
lished by Mr. Zenger hin»elf, having made a
great noise in the world, is here inserted ;
though the doctrines advanced by Mr. Hamil-
ton in his speeches, arc not allowed in the
courts here to be law.<— See lord liaymond's
opinion in the foregoing Trial, p. 072. — ^To
ivhich wc have subjomed some remarks on this
trial, published soon atler it made its first ap-
pearance. Former Edition, See also stat.
39 Geo. 3, c. 60, as referred to in a note to
Fraocklin's Case, ante^ p. 073, and tbo other
|Arti«ftkatBOt0.
earning Jibcis; they are arrived to thatbe^i^^
that they call loudly for your animadvenioo;
it is high time to put a stop to them ; forattbs
rate thing3 are now carried on, when all order
and government is endeavoured to be trsmpkA
on, reflections are cast upon persons of all de*
grees. Must not these things end in seditioi»
if not timely prevented? Lenity, you have seeOf
will not avail ; it iiccomcs you then to eoquirs
aiWr tbe olfenders, that we may, in a das
course of law, be enabled to punish them. If
you, gentlemen, do not interpose, consider
whether the ill consequences that may ariis
from any disturbances of the public petCfi
may not m part lie at your door P
*'* Hawkins, in his chapter of Libels, coondoi
three points: Ist, What shall lie said to Is i
libel. 2dly, Who are liable to be punished kt
it. 3dly, In what manner they are to ks
punished. Under the Ist, he says, § 7t * Nil
* can there be any doubt, but tnat a writisgi
* which defames a private person only, is m
( much a libel as that which defames persons ift"
* trusted in a public capacity, in as muehuil
' manifestly tends to create ill blood, and to ctOH
* a disturl>ance of the public peace ; howercif H
< is certain, tliat it is a very high aggravita
< of a libel, that it tends to scamialisBO the g0«
* vcmment, by reflecting on those who are si"
< trusted with the administration of publietf«
< faiiit which does notooly eiuUuigw tlM pakii
Jqt a Lihth '
C IT libel* do, by Klirrini; up tlie
iXy cuncerrteil Jii it, in ncu or
« liai ■ ciirecl wmioney to
lie « ilislihc nl' Iheir f^remors
idiae Ihcm to fuclinn aiiil neiMilno.' As
Id Doint lie inyv, \ 10, ' It is nrinln,
\y M who c<iiu|iOBei or procures nnn-
> compiMp il, bill ilso (hot lie wlio pub-
or procures nnothrr to |iubli«li it, are In
r of bein^ punisbeil for it ; ami it ia
Im mUcrml, wbetlivr lie wlm d'wper
u pulliih the most virulmt pap
*M«Ht EMUrity, ir the i-oncMling the
n or lb«m Troni an illilcralK {lublishcr
i make bim safe in tde iliuperslDg'
Alio it bus been said, tbat if he who
ttlier read a libel bimielf, or haih lieird
d by anotber, do afterwards maliciously
f report any part of it in tbe pmenee,
er*. or lenil or kUpk it to anollier, be it
' ofau uiila>*l'ut publication oFil. Also,
il been boIJcii, Ibat llie copying of a
ball be a condutive evidence of llie pub-
Mi of it, unless Ihe parly cno prore tbat
iTeT«d it to a Riagiiitrate lo examine it,
lieh ca«e the act aubsequent i* said lo
in the intention precedent. But itieeiDs
tbe betler opinion, that be nbo fiiEt
II Ub«I, dictated by anniber. ia lliereby
' of makinir of )t, and ciiusequenlly
liable for the bare n-riting ; fur it was
el till it wu reduced to writing.'
\<mt, getilleiDeu,aresaiiieof (be uReticcs
are to make part of j'our eiiijuirics ;
i»y otiier should arise in llie course of
'ooecilugs, in wbicl) you are A a loss,
nivcany doultls, u|kiii your appHcaliua
'« Kilt OMiat and direct you."
gnwd jury ool iiuljcliug m-- ns was ex-
ibcgeulleincn of ibe Cuuncil prO<)eeiled
my Journals into coiisi deration, and stnl
bwing Mescage to the General As-
I Jofia, 3 p. N. ITtb of October, 1734.
Mmh^ frnm tbe (Council by Philip
■lt,m tliese wnrds, to nil: ■Thatbniird
bad leKral of Zenger'n New Viirk
r Jeumali laid belbre tliem, and other
n> papers, landing to alienate tbe af-
I of ihc people of tins province from
jcaiy'* govcminenl. to raise sedliions
HuJM among the prnjile ol' this pro-
ud 10 nil their minds with a cnntompl
Bl!^t«ly'a I^overnmenl ; And eoosider-
ipaniicioiu cai»M|uence> that may al-
■■ growinn evils, if nut speeddy and
illy put a stop to: And conceiting that
M Nk«ly inelliod to put a atop lo such
id MubtMua pradicci, to maintain Ihe
•T hia imyealy'a govurnaieol, and lo
■ lis* peace lben»f, would bv by a con-
bMween a Committee of this board,
jilpWUNsdlwAMMBtlfly i it ia thetc
t^A. D. I73S.
tGT»
fore orilereil, that Ibe gentlemen ofthisboan);
now assembled, iir any seven of itiein, be s
coinmiUee, to join a oommiUee of the llnasa
of llepresenlniivei, in order to confer tngellMr,'
and to cximioe and enquire ialo llie said
pnjiers, and the Bulbort and ivriteni lliereof.* „
*' Which Message Vnan^ read,
" Ordered, Tbut Ibe niemben of this House,'
or any funtteen ol'lhein, du nieel a Conimille*
of IbH Couucil, at tbe time and place ilicrein
lueulioned. ^
" Die Veneris, 9 a. m. 18 October, 1734.
" Mr. Oarretson, from the Commitleeuf thif
Douse, reported, Thai the; last iii|^ht met IllS
Committee of the Council, on Ihc suli|erl>iiialler
oftheir Mess age of yesterday lo Ihia Housej and
that aftar several preliminaries between ibe eiu4
Commillees, ihe gentlemen of the Council re-
duced to ffriliog, what tbey reignesled of thil
House, and dehvered llie same to Ibe cbsirmaaj
who delivered it in at the table, auil being read)
is in tbe words following ; ■
" • At a Cororaitlee of tlie Council held thq
' ITth of October, 1734 : E>HE8ENT;Hr.
' Clarke, Mr. Harrison, Dr. Coldeo, Mr.'
'Livingston, Mr. Kennedy, Mr. Chief
' Justice, Mr. Corklandt, Mr. Lane, Mr.
* Uotsmanden.
" ' Geatlemen ; Tlie mnltcrs we re(|Ueit
' your concurrence in are. Thai Zenger's p«-
■ pen. No. 7, 47, 18, 49, which neie read, and
' wbieli we now deliver, be burnt by the bandl
' of the common hangman, as contaiuing in
' Ihein many things demgalory of the dignil^
' of bia majesly'H government, reflecting ujioq
' ibe legislature, upon the mnsi conshlerabltt
■ persoijs in the most diatinguisbed stations iii
' Ibe pruvince, and tending In raise cediLiout
' and tumults among the people thereof,
■' ■ That you concur with us in tlie address-
' ing Ibe governor, to issue his pivctaroniiuiH '
■ with a promise of reward fur tbe discovery of ]
' the aulliors or wrilera ol these nediliou* libeli.
" ' I'hat you concur with us in an Order for
' proseruling Ihe printer thereof.
*■ 'That you concur wiiti u!> ia an Order lo
■ ibe magistrates, lo exert Ihemsalvts in lb*
* execution of iheir oflicc<, in »rder to preaerrd
' the public peace of Ihe pruvince. By orde^
■ of Ihe Commiiiee,
" ' Tbeo, MtJBRjs, CI.Coo,'
■' Mr. Garrelson delivered likewise to lb* '
House the several papers referred loin tile said
reipiest,
" Ordered, That the said pii|ier« be lodged
with the clerk of this House; and lliat lh«
coiraidaration thereof, and Iha said rei|ue*l, ba
referred till Tuesday next.
■■ Die Mortis, 9 *. m. 3'j October, 1731.
" Tbe House actMrding to Ordrr proceeded i
lo lake inio consideraiinn the rique^l nf a C'uiii* «
millec of Council, dcliviired to.t Co mini Iter of ''
thu Usmc, OB tlic lOtb insuiDi, as tikcwiia «l ^
679] 9 GEORGE II. Trial of John POer Zenger, [680
the sereni papers tbereio referred to. AaA it tboald be entered, they wooU h«Te thiir
atW aeveral debates upon the subject-matters, protest entered against it.
it was ordered. That the said papers and re- On Wednesday the 6th of Novcnbcr, iIm
quests lie on the table.' ' sheriif of Niew York mored the Court of QuBr<
The Council finding (be General Assembly !f5:!!^i?"; *** '^•TJ''^,]*'"' ^J!^^^*
would not do any thing about it, they sent the ,"£?■ J^'u ""'' ** *" "i^T^ °5*rf„IL2!:
fo.lo.injMessa^totteouse: in;nraUl7™S,'Sh«S;SriJ'rS
*f Die Sabbati, 9 a. m. 8 November, 1734. not objecting to it, and is as followelh :
' ** A Messa^ from tlie Council by Mr. Liv- " Whereas an Order has been serred OD lUi
ingfston, desinog this House to return by him Court, in these words." [The Order as abova
to that board the several sethtious Journals of inserted.] ** And whereas this Court concciTfs,
Zenker's, No. 7, 47, 48, 49, which were deU- they are only to be commanded by the kiiic'i
YercSi by a Committee ol'that Board to a Com- mandatory writs, authorised by law, to which
mittee of this House thp 17 th of October last, they conceife they have the right of sbeviai
together with the proposals of the Couimiitee cause why they douHobey them, if they beliert
or that Board, delivered therewith to a Corn* them improper to be obeyed ; or by Orders, which
mittee of this House ; and then withdrew." have some known laws to aulhorise them ; aii4
On Tuesday the 5th of November, 1734, the "*•*"*• *''!' Court conceives this Order to k
y" »"«=»"."j •"'=•'"•'» '^ "^"""'t" •»»•""» n„ mandatory writ warranted by law, M(
yarter-sessjonsforthecityofNew Yorkbe. k„ows of no law that authorises themakiii lb*
gan when the sheriff dehveied to the Court an ^y^^ aforesaid; so ti.ey think tbem^ft*
Order, which was read m these words : „„j^^ „„ oblijfation to obl^ it : which obcdj.
<c A* ^ 't t tj A-n ». r^ • x' cncc, they think would be in them, an opeoioff
« At a Council held at Fort George m New ^ j^^ J ^^^ commands, which. wfcS
York, the 2d of November^ 1734: Pre- ^^ce opened, they Low not what dangeroM
sent; His Excellency William Cosby, eousequencel may attend it. WherefoS^ Ihif
CapUin Grneral and Governor in Chiet, Court conceive, itself bound in duty (for tin
&c. Mr Clarke, Mr. Harrison, Dr, Col- e^^rvation of the rights of this curp^atioi,
^u'f ? ;• '*!ir r:. h'- u^"rt ? ' «n^». as «»«»» ^^ tl)cy1ian, the liberty of tke
Chief Justice, Mr. Cortlandt, Mr. Une, ' and the people of the province, smce n
Mr. Horsmanden. isscinbly of the province, aud several gn84
<< Whereas by an Order of this Board, of this juries, have refused to meddle with the papm»
day, some of John Peter Zcnger*s Journals, when a;)plii!d to by the Council) to protest
entitled, «The New York Wlekly .Itiunial, ajrainst the Order albresaid, and to forbid ill
* containing the freshest Advices, iorelgu and the members of this coqM»ratiou to pay any
* domestic,' No. 7, 47, 48, 40, were ordered to obedience to it, uutil it be shewu to this Court,
be burnt by the hands of the commuu han^- that. the same is authorised by some knowa
man, or whin|>er, near the pillory in this city, I:iw, which ihey neither know, nor beiieTe that
on Wednesday the Glh instant, betwci^ti tue it is.''
Lours ol eleven and twelve in the forenoon, as
tnemosiuisiinmiiiincu sia ions ui litis province: « u i ^* i «i *^u ij. «• «u i ^ .»<i
•* ■ .1 i « t ... I o'l » .1 "^ i"vc . ^ ^ burnt by the hands ut the hanemaD, aw
It IS thcreiore oi^.cd, That^t^h and that the mavor and aldermen of London slUl
niaffistrates ot tl. s city do attend at tbe^uru.njT ^^j^,, ,|,^ ^,- ^^ -^ ^o which one of theal-
ot .he severa Papers or Journals aioresaid, ,,^,,„^„ ,„^^ J^d ^^ ^^-^ ^ ^ ^^^ ^
numbered as above ment.oued conceived the case was no* wi^s parallel, be-
« T p I ^ f J^' i Tttt^or onL^"""' «^««« *>«• Sucheierell a,.d his H^moo w«i
To Robert ^-^^ing esq »a>j^^^ of he i„,peached by the House ot Commons of Enf -
city of New Y«>rk; •"J the rest of ifae ,^J,, ^^^,J^^/J^ ^^^ ^ . ^^. ^ JJ^
majrisirate- lor the said city and and JeHresentativcM/the wliole^ people of Eag-
^**""v • land : that this their impeachment they prose-
Upon readincf of which Onler, the Court cuied before the House of Lords, the p«ate«t
forbud the onterinj; thereof in their b<Miks at court of justice of Britain, and which, beyoad
that time ; and many of them declaretl. that if memory of man, hus had cinrnizance of thiogl
' -- of that nature: that there Sacheverell had •
. • « N. H. V)r. Colden was that day at Joir hearing in defence of himself and of hii
Esopns, VO miles from New York, tlioui^h men- Sermon ; and after that fair heorinjr. h« mA
tioned as preient in conocU."— forffMr Edi- his Sermon were justly, fairly, and iogoNy
11011. oimdmntd: that h« had ntd Um OMa of On
OMJ M * UhtU
\ iBdtbMiht iMCouM charg« bi«
; that the jud|[ni«i «f itis Boom of
■o^ m tint MM tfM, That tlia naaym and
■hHiA of Isonhm and Miildletex only ilioulJ
MMiibe hnmingBfiheSemMD, MHlnot tbe
dfaaca; aiidfartberlMrememb«r«l, tlutllie
Orftr Mpoa that JDflgnaent WM only directed td
fti ^anfla of LeoduD, and uot ereti Id tbc
■mr, who did not attend Iba doiai; it : aud
ftMB aaid, that would Mr. RcRDrder iLiew,
Attbe govemor aod council bad inch autho-
•Hfm Uw Honae of Lords, and that tha paper*
MBtd to ba borat wen in like man&et kffally
IWaoMed and condemiied, Ibere the caia of
fc. laahTarall migbt be to tlie paipoae ; but
HkmA abawii^ tbat, it ratber proved tbat a
MMR OOgbt not lo be pronaoDced, till a fair
tU \^ ■oompetent and legal auiliority were
It could pra-
kHiafficicat aulhoriliea to warnnt tbi* Or-
fci iwy would Toadily oliev it, bal othprwiie
■t Vyaxi which be laid, ha did not carry his
lab aaout with him. To which it wat an
mral, be tnigtit aend Ibr ihem, ot vrAtt a
[ MMaUa to feich Ihem. Upon nhich ha
e nat, and at the lower end of Hie tabic he men-'
laai, that biifaop Burnet's Puloral Lrller was
• Mutdiby llwHouseorLordiiiobobiirDt* by ,
I ia^ bailiff of WeMminiter-, ujwn whicb |
laamplly went away, without waiiinefuran .
Maar, or pramisin^ tu bring hia baots, and
Halt ntam aiiting ibe Court.
ktm Mr. Recorder'a dcparlore, it waa
«Md, that tbe Protest thould be eolered ; to
■lUit was anawered, tbat the Protest cuuld
IM ka entered, without entering alio tbe
(Mv, tbat it was not Bt to lake any notice of
i i; ud therefore it was proposed that no no-
faa abould be taken in tlieir books of either,
•Uefa waa unanimously agreed to by the
CmbL
nasfaerilFthenmoTed, that the Court would
Ami their whippcr lo perform llie said Or-
fa; lo which it was answered, That as he
«n Iba officer of the corporatiun, they wuold
^ ao such Order. Moon after wbich tbe
Cm adjouToed, and did tiot aiteuil the burn-
Mi of Ibe palters. Aflerwards about noon,
ftt sberiS*, after reading the uunibera of the
*>wal papers wbich were ordered tn be burnt,
Mrered Idcri unto the handsnf hisown negro,
•1 ordered him to put them into tbe fire,
•kiehhe did; at Hbich Mr. Recorder, Je-
naiab Dunbar, esq. and several of the offi-
*n of the garriaoo, attended.
On the Lord's ilay, tbe ITtb of Norember,
* Bishop Kennet aaya, that this Letter
Mned to be aacriGced to a poor Jeat on the
■■bar's name [BunMtl. Complete Hist, of
yi-wl. 9, p. S8r, 3 Ed. in Load, iri9.—
f«»
" At a Council held at Fort Geoiwe in New
York, Ilia Sil day of Nofember, 1734.
Pkesent ; bis Eicellency William Cosby,
Captain General and fioTernor jD Cbiw^
&c. Mr. Clarke, Mr. Harrison, Mr.
Livingston, Mr. Kennedy, Chief-Juslieo,
Hr. Cortlanitt, Mr. I^oe, Mr. Uors-
manden,
" It is ordered, that tbe sheriff for the citv
of New York do forthwith Ishe and ap-
prehend John Peter Zeoger. for printing and
pubtiahing aereral aeditioua Ubels, disperaad
thniiit{boul bis Journals or Newe-papen, in-
tituled, ' The Nrw York Weekly Journal, con-
taining the freshest advices, foreign and da*
mcalic ;' as having in lliem many things tend-
ing lo raisa lactioua and lumutla among iho
propte of this pnivlnco, ioSuoiing their uiinda
with contempt of hia majesty's eovrmmaot,
and ^really ilulurbing the pean- Inerrof ; and
upon his taking the said John Peler Zeagar, to
commit him lo the prison or comtnoa jul of
■' ■ ■ ■- -|nj i^unty.
" Faao. Hoaais, D. Ct. Con."
And bang, by virtue of that warrant, ao ira-
prisuned in tlio jsil, I was I'nr several day* de-
nipd iheuseof pt>n, ink, and paper, and the fi>
berly of speech »ilb any ptraiins. — Upon mj
eomiaiiment, some frirmls hdou uot a Habeaa
Corpus to bring me betbre the uhief-juslioo, in
order lo my discbargc, or being bsileiJ ; on the
return whereof, on VVedaesilay the SOtb of No>
vember, roy counsel dflicrred exeeptiona t*
the return, and tbe chief- justice ordered Ibena
to he argued publicly at Ihe city ball, en tiie
Salnrday tbI lowing.
On tktuTiiay the 93d of Nuverober, the said
eiterptinns cwme to be argued, by James
Alexander and William Smith, of rounsel far
mc. and by Mr. Aliornrj' General, snd Mr.
Warrei, or cr)un<tel sgainsi me, in presence of
some hundreds of the inhabiiants ; where my
counsel (>aving the benelil of exception to the
illfi;aUt\ of the narraul) iosiated that 1 migbt
be admitted to reasouabie bail. And lo ahew
thnt it was my right to be so, they ofiared
Magna Chnrta, the Pelilion of Right, S Car.
the HabeasCorpusAdof »l Car. 3. which di-
rects the sum, in wbich bail is to be taken, to
be, ' accDiiling to tlie qiialily of the prisoner,
and nature of the offence.' AIm 3 Hawkini^
cap. IS, \. ."i, in these words,' But justioesmnat
lake care, that, under jirelence iil' demanding
aufficii-nt securily, they do not make so exces-
sive B demand as, in effWt, amounts to adeoial
ot bail ; for ihia is looked on as a ereal srriev-
ancc, and in complained of i
H. aesB. 9. by
Buch, by 1 W.fc
declared, ' Tbat ex-
to be required.' It wat
also shewn, llnit the Heven Bisboiw, who, in
king JampB Ilii- ad^ tirae,-were charged with
Ihe tike crime tliat I stood charged with, were
-'— — ' - ' 'on tlieir own recogmsancet^
ess]
9 GEORGE II.
Trial of John Peter Zenger,
[»*
tbe archbishop in SOO/. and each of the other
six in 100/. a-piece only. Sundry other au-
thorities and aqg;ument8 were produceil and in-
sisted on by my counsel, to prore ray riciki to
be admitted to moderate bail, and to sucn bail
as was in my power to g^ve ; and sundry parts
of history they produced, to shew how much
the requiring excessive bail had been resented
bv parliament And, in order to enable the
CduiI to juilge what surety was in my power to
r've, I made affidavit, That (my diebts paid)
was not worth fony pounds, (the tools or my
trade, and wearing-apparel excepted.)
8ome warm expressions (to say no worse of
thetn) were dropt on this occasion, sufficiently
known and resented by the auditory, which,
for my part, I desire may be buried in obli-
Yion : upon the whole, it was ordered, that I
might be admitted to bail, myselfin 400/. with
two sureties, each in 200/. and that I should
be remanded till I gave it. And as this was ten
times more than was In my power to counter-
secure any person in giving bail for me; 1 con-
ceived 1 could not ask any to become my bail
on these terms ; and therefore 1 returned to
jail, where 1 lay until Tuesday the 2Utli of Ja-
nuary, 1734-5, bring tbe lastdav of that term ;
and the grand jury having found nothing
against me, f expecte<l to have been discharged
from my imprisonment : but mv hopes proved
Yain ; for the Attorney General then ehar^
me, by information, for printing and publisbmg
parts of my Journals No. 13 and 23, as being
false, scandalous, malicious, and seditious.
To this information my Counsel appeared,
and offered ^Exceptions, leaving a blank for in-
serting the judges commissions, which the
Court were of opinion not to receive till those
blanks were filled up. In the succeeding va-
cation the judges gave copies of their commis-
sions ; and on Tuesday the 15th of April last,
the first day of the succeeding term, my
Counsel offered these Exceptions; which nere
as follow :
" Tbe Attorney General, v. John Peter
Zenger. — Ou Information for a Misde-
meanor.
** Exceptions humbly offered by John Peter
Zenger, to the honourable James de Lancey,
«sq. to judge in this cause.
*< The defendant comes and prays hearing
of the commission, bv virtue of which the ho-
nourable James de LAncey, esq. claims the
power and authority to judge in this cause, and
it is read to him in these words :
" * George the 2d, by the grace of God,
' of Great Britain, France and Ireland, king,
' defender of the faith, &c. To our trusty
' and well beloved James de l^ncey, esq.
* We, reposing special trust and confidence in
* your integrity, ability and learning, have
* assigned, constituted and appointed, and we
* do by these presents assign, constitute, and
* appoint you, the said James de Lancey, to
* be chief iustice in and over our province of
^ Mew York, in Ameiicay in thenMMD of Ltyris
'Morris, esq. giving and by' these |ineKBir-
* granting unto you full power and lawftil an-
* tbority to hear, try, and detennine all pleas
* whatsoever, civil, criminal* and mixt, aeeord-^
* iug to the laws, statutes, and ctistoms of mt
* kingdom of England, and tbe laws and us^
* of our said province of New York» not \tmg
< repugnant thereto, and executibnsof all jade*
' ments of the said court to award, and to nuse
* soch rules and orders in the said court, as may
* be found convenient and usefaly and, as sear
* as may be, agreeable to the rules and eidcffr
* of our courts of King's-bench, ComiMa
< Pleas, and Exchequer in England. To have,
* hold, and enjoy the said office or place of cfaisf
* justice in and over our said provmce, with all
' and singular the rights, privdeges, profits sod
' advantages, sahiries, fees and j[»erqaisites mis
*■ the said place belonging, or in any ways ap«
* pertaining, in as full and ample manner m
< any person heretofore chief justice of oursaii
' provmoe bath held and enjoyed, or of i^
< ought to have held and enjoyed the same, l»
< you tbe said James De Lanoey, esq. forasd
« during our will and pleasure. In tesduMMj
< whereof we have caused these our leiten is
* be made patent, and the great seal of oar
* province of New York to be hereunto affizsd.
< Witness our trusty and well-beloved Willim
*■ Cosily, esq. our captain-general andgoveiMr
' in chief of our provinces' of New York, Nc«
< Jersey, and the territories thereon depadiir
* in America, vice-admiral of tbe same, lad
*■ colonel in oar army, at Fort George in Nev
* York, the 21st day of August, in the 7th yor
* of our reign. Anno Domini, 17S3.'
" Which being read and heard, the said John
Peter Zenger, by protestation not confessiog
nor submitting to the power of any other per-
son to judge m this cause, doth except to tbe
power of the honourable James de Laocej,
esq. aforesaid, to judge in this cause, by virtoe
of the commission aforesaid, for these reatonii
VIZ.
" 1st. For that the authority of a judge of
the King's-bench, in that part of Great BriltiD
called England, by which the cognizance of
this cause is claimed, is by the said commissioa
granted to the honourable James do Lanoey,
esq. aforesaid, only during pleasure ; whme
that authority (by a statute in that case mule
and provided) ought to be granted during good
behaviour.
** 2nd. For tliat,I)y the said commission, the
jurisdiction and authority of a justice of tba
court of Common Pleas at Westminster, in tbst
part of Great Britain called England, is granted
to the said James de Lancey, esq. which juris-
diction and authority cannot be granted to, and
cxerciseil by, any one of the justices of tbt
King's- bench.
** 3rd* For that the form of the said commis-
sion is not founded on, nor warranted bv tbe
common law, nor any statute of EnghinJ, asi
of Great Britain, nor any act of assembly of
tliis cohiny .
'* 4th. For that it appears, by tba
tbe
fiS5J JbraLiteL
■fivrenid, that the game is icnraDted amter >
I of litis colony by his excellency Wil*
Cosby, esq. uroTernor thereof; and it ap-
I Boty tbai the same was granted, neither
IIm awiM grranted, by and with the advice
consent ^ his majesty's council of this
tv ; wiiboot which advice and consent, his
Irney oonld not Rrant the same.
Wherefore, and for maov other defects in
■id eommissioo, this defendant hnmbly
tbat the hononrable James de Lancey,
will not take co|pizsnce of this cause, by
Mof the commission aforesaid.
. " Jamhs Alcxinder.
*' William SMrru."
Tha Sxceptions to tbe Commission of the
hMoarable Frederick PhilU|»se, esq. were the
MM with the foregoio£^, includiufi^ therdn his
I, which is in Ihciie words:
A.D. 1735.
[688
*Qeorve the 8d, by the f^raee of God, of
*flnt Britain, France and Ireland, kinir, de-
HWsr of the faith, &c. To our trusty and
^•beloved Frederick PhiUi|i8e, esq. j^reet-
a: whereas it is uur care, that justice be
y administered to our subjects within our
iravfaice of New York, and territories thereon
eBfsadieif in America ; and we, reposing
Dial confidence in your integrity, ability
iaaroiog, have assigned, constituted and
~, umI we do by these presents as>
■Pi ooostitnte and appoint you, the said
Fraderick Phillipse, to be second justice of
Mr supreme court of judicature tpr our pro-
of New York, in the room of James de
liseeT, es^. eiving and granting to you, tbe
■iiredenck Phillipse, full power and au-
Miy, with our other justices of our said
■yKme court, to hear, try, and determine all
fw wbatsoerer, civil, criminal, and mixed,
MeordiDg to the laws, statutes and customs
rfsor kingdom of England, and the laws and
Mgsa of oar said province of New York, not
JMi^ repugnant tliereto ; and executions of all
jivments of tbe said court to award, and to act
ijM do all things, which any of our justices of
oiber bench, or barons of the Exchequer, in
■ttsaid kingdom of England, may or ought
ts do, and also to assist in tbe making such
nils aod ordersnn our said court, as snail be
htihi good and benefit of our said proTince ;
Mdi as oear as conveniently may be, to the
tales and orders of our said courts in our said
bgdoei of England: to have, hold, and en-
jjij the said office or placeof second justice of
•ttsaid province of New York, together with
4 aad singular the rights, privileges, salaries,
fcii, perquisites, profits and advantages there-
tli now or at an^ time heretofore Mlonging,
^io any wise ot right appertaining, unto you,
Ike said Frederick Philhpse, for and during
*tt pleasure. I n testimony w hereof, we have
tMwd these our letters to be made patent, and
^ great seal of our said province of New York
h M hereunto affixed. Witness our trusty
^ well-beloved William Cosby, esq. our
•imiigfptral and govamor in cWf of our
* pro? iDces of New York, New Jersey, and
' territories . thereon depending in America,
< vice-admiral of the same, anil colonel in our
* army, Sea, at Fort Geprge in New York, the
* 31st clav of August, in the 7th year of our
* reign, Anno Domini, 1733.
* Fred. Morris, D. Secretary/
Tuesday^ April 15, 1735.
Mr. Alexander offered the above Exceptions*
to the Court, and prayed that they might be
filed. Upon this the chief justice said to Mr.
Alexander and Mr. Smith, that they ought
well to consider the consequences of what tliej
offered. To which both answered, that tlier
had well considered what thev offered, and aH
the consequences. And Mr. Smith added, that
ha was so well satisfied of the right of the sub-
ject to take an exception to the commission of
a judge, if he. thought such commission ille-
gaJ,— that ha durst venture his life upon that
point. As to the validity of the Exceptions
then offered, he said, he took that to be a se-
cond point ; but was ready to arc^ue them both,
if thi ir honours were pleased to hear him. To
which the chief justice replied, that he would
consider the Exceptions in the morning; and
ordered 4he clerk to bring them to him.
Wednetday^ April 16.
The chief justice delivered one of the Excep-
tions to the clerk, and justice Phillipse the
other ; upon which Mr. Smith arose, and ask-
ed the judges, whether their honours would
hear him upon these two points. 1st. That
the subject has a right to take such Exceptions^
if they judged the commission illegal. Sdly.
That the Exceptions tendered were legal and
valid. To which the chief justice said, that
ihcy would neither hear nor allow the Excep-
tions ; for Tsaid lie) you thought to have gain-
ed a great deal of applause and popularity by
opposing this court, as you did the court of
Exchequer ; but you hare brought it to that
point, that either we must go from the bench,
or you from tbe bar: therefore we exclude yoa
and Mr. Alexander from the bar ; and defiver-
ed a paper to the clerk, and ordered it to ba
entered ; which the clerk entered aooerfii^y,
and returned the paper to the chief Msiice;
aAer which the chief justice orderai tte derfc
to read publiclj' what he bad wiittui ; aD at-
tested copy whereof follows :
"At a Supreme Court of Jodiiaavt hdd for tbe
Province of New V«fk. ai lUe Tily-Hall
of the City of New \utk,^ Wnlnesda^
the IGtli dav of Aiiril, 17^5. Prised t
the lion. JaiBi^ it Imut^y, i sq. ri '
justice. Tlie Hm. ^foitarick Ph"" '
esq. second justic*.
«' James Alpxai4«:,asu sn<< Wiliin- ...'
attoroies of this CuM, iisviiiii prp-i .-»
withstanding Ikpv ^^gm Utrcwrr: -- -^ .
Court of thrir 4Bs^lSBwrp', il ihe; - «.
to sign, imI kmnm arii^iu ^ *«
into c«ttrt, ■#- :^
• i»
&'
687] D GEORGE II. Trial of John Pder Zenger, [OSB
Peter Zenger; thereby denying the legfality
of the jiidjpes their coromiMicHis ; though in
the usual lorm, and the being of thii Supreme
Court It is therefore ordered, tbat» for the
aaid contempt, the said James Alexander, and
William Smith, be excluded from any farther
practice in this Court ; and tliat their names
oe strucli out of the roll of attomies of this
Court. Per Cur'. James Lyne, CI."
After the order of the Court was read, Mr.
Alexander asked, whether it was the order of
Mr. Justice Phillipse as well as of the chief-
justice ? To which both answered, that it was
their order; u|ion which Mr. Alexander added,
That it was proper to ask that question, that
they might Know how to have their relief :
be farther observed to the Court, upon reading
of the Order, that they were mistaken in their
Alexander and Mr. Smith said, thejnadsr-
stood it otherwise.
They both also mentioned, that it was a
doubt, whether by the words of the Order, tbe^
were debarred of their practice as oonnacl, m
well as attomies, whereas they praetiacd ii
both capacities. To which the chief^jviiBi
answered, That the Order waa plain, ** Vak
James Alexander, esq. and Waliam Sorilk,
were debarred and excluded from their vkili
practice at this bar ; and that the Order wv»
tended to bar their acting both as oonnael wai
as attornies, and that it could not be eonatrud
otherwise." And it being asked Mr. Pbiflijisi^
whether he understood the Order so ? He an-
swered, That he did.
Upon this exclusion of my counsel, f peti-
tioned the Court to order counsel for my de-
fence; who thereon appointed John Cnaoh
wording of it, because the Exceptions were bers, esq. who pleaded Not' Guilty for me ti
•nly to their commissions, and not to the being the information. But as to the point, whellier
of tlie Court, as is therein alleged ; and prayed tny Exceptions should be part of the reoonl,sl
that the Order might be altered accordingly, was moved by my former counsel, Mr. ChsoH
The chief-justice said, they conceived the Ex- hers thought not proper to speak to it. Mr.
ceptionawere against the being of the Court. Chambers also moved, that a certain day nl
Both Mr. Alexander and Mr. Smith denied the next term might be appointed for my tml,
that they were, and prayed the chief-justice and for a Struck Jury ; whereupon ray irid
to point to the place tliat contained such excep- was ordered to be on Monday the 4tb of Av
tions ; and further odded, that the Court might gust, and the Court would consider till tkl
well exist, though the commissions of all the first dav of next term, whether I should hsii
judgtt were void; which the chief-justice con- a struck jury or not; and ordered, that lU
fessed to lie true : and therefore they prayed shcrifT should, in the meantime, at liiy dUKp,
again, that the Order in that point might be return the freeholders book,
.licred ; but it wm denied. ^, , j,^ ^^^ . ,^ ^^^^ „f Judicatore held for lU
Then Mr. Alexander desired to know, whc- Province of New York, before the bo-
ther they over-nded or rejected the Excep- nonrable James De Lancey, esq. Ckisf?
tioDs? The chief-jirstice said, lie did not nn- Jiisitice of the said Province ; and the bt?
derstand the dilFf ronce ; to which said Alex- nourable Frederick Philli|>se, esq. fS-
ander replied, that if he rejected tiie Excep- cond Justiceof the said Province,
tions, tben they could not ap|>ear upon the ^ rj, ^ ^ , f j , . ^
EiT'^^X r„Ll» luZ''Z^^JltX Courtopenedr and on motion of air. Cliamta*
was entitled to have them mane part ot the /. <.»' .•» _. **^*u i^ak*
proceetlinn by bills of exceptions : 'but if tl.cy ^'^ * ^'"^"^ Jury, pumiant to the rule of Ibe
Sver-ruled them, then, by .0 doinp. they oulV f''";''"? '*'"!!,/'',*. S""^. ?S AT?.'
I , , .1 ' iT^- ... A^ I- I "^.i ^ that I was entitled to have a Struck Jarj;
declaredthem not .ufficient, to h.nder the.u „„j .^ . g „,. ^ ^^ ^
S!".'"^.y.* i!'C.!l'.?'n. «1 ?f *''™""'' of my friends attended the clerk, for inimg
!^ L!l?'*.i..'^V„ r» i Tf.T.. K™'\" 'I •he Jury, when, to their .arpriU. the de<
recordset the C/Ourt, and ouj^ht to be entered • .Jlj'^r i • .1. i- 1 u u 1. 71
..^ ^^«j ^** .1 « ' « ** • r.i instead of producinff the freeholders book, tt
on the record ot the cause, as part of the pro- . -i .■ ■ .. *'r '^ • ^u • m^
^^A'^^ Ti.^ «i.:-f ;..-. J« ««:i ti i .. * strike the jury out of it m their presence, il
ceedmira. The cuiei-jusuce said, They must ^1 1 *^ ■? a %- a c Mt* * iL^
remain uoon the file to warrant i^liat we have "*"**' '^® produced a list of 48 persons, »b«;
remain upon ^l"^.^^^^^^ ^oIIaJJ »»« wW, l»e had taken out of the freehoMot
done : as to beiiiuf part ot tiie record of the • • r • 1 a 1 1 c .1 ^ . ^ —
-^™ 1: :« 4K-* Vw...o- u^ ..«:.! V V . -, hook : my friends told him, that a great noinkcr
proceedinirs m tliat cause, he said, You may ^c *i ^ '^ I* r 1^1 1 «k^
- 1. «^ Ti * .»«:«• *« »^»<«... ^ of these persons were not freeholders ; ton
•peak i9 »•••« point to-morrow-. ^^^^^ J^^ ^^^^ ,,^,jj^^ commlMiont i>4
Friday, April IBth, irSS. office, at the ^o^ernor's pleasure ; that olbrt
'^' '^ ' were of the lalf disjdaced magistrates of tM
Mr. Alexander signified to the Court, that city, who most be supposed to have resentmeal
on Wnlnesday last their honours had said, against mc, for what J had printed conceraiaf
that the counsel for Mr. Zenger might speak them ; that others were the governor's bakcff
to the point, concerning the rejecting or over- taylor, shoe-maker, candle-maker, joiner, te
ruling of Mr. Zenger's Exceptions, on the that as to the few indifferent men that w«i
morrow: to which the chief justice answered, upon that list, they had reason to believe M
that he aaid. You may get some person to Ihey bad heard^ that Mr. Attorney bnd a l»
.i^penk to that point on the morrow, not mean- of them to strike them out ; and therefore re*
lag that the Mid Atexander shouM apeak toil, quested, that he would either bring the fne^
tiiat bti9g oontrary to the Ordft. Mb Mr. holders book| and oboie out of tt 48 mo^
fit a LibiL
ible mas in their presence, as usual ;
, that be would bear tbeir oblectiooa,
arijf to the list he oflfered ; anutbathe
ut unpardal men in the place of those
whom thej coubl shew just otuections.
lataadiog tbu, the clerk ret used to
beinry out of the freebdklers book,
laed tobear any objections to the per-
his list ; btit told my friends, if any
15 they bad to any persons, thev migpbt
bose persons out; to which they an-
Tbere would not remain a jury, if
-uck out idl the exceptionable men ;
ording to the custom, they bad only a
strike out IS.
lading no arguments could preraii with
k to bear weir objections to his list,
rike the jury as usual, Mr. Chambers
I, he must .apply to the Court, which
; moming be did ; and the Court, upon
ion,* ordered, That the 48 should be
«t of the freeholders book, as usual,
tresence of the parties ; and that the
MNiId bear objections to persons pro-
be of the 48, and allow of such cx-
aa were just. In piu-suance of that
jury was that evening strudc, to the
ioo of both parties, though my friends
loael insisted on nu objections but want
olders ; and though they did not insist,
'• Attorney General (who was assisted
Blagge) should shew any particular
^iast any persons he disliked, hut'ac-
1 that any pierson be disliked should be
16 48.
e James De Lancey. esq. Chief-
f the province of Now Yoik, and Fre-
?hillipse, second jud^'e, came on my
] the fourth day of August, 1735,
information fur printing and publish-
> news- papers, which were called
;ainst our governor and his adminis-
lefendant John Peter Zenger, being
ppeared.
tie sheriff returned his Venire for the
;his said cause.
hamLertf of counsel for the defendant.
y move your honours, that we may
iice done by the sheritf, and that he
irn Uie oamesof the jurors in the same
they were struck.
■AieJ' Juiiice, How is that ? Are they
turned ?
'hamhers. No, they are not ; for some
lames that were last stt down in the
ire now placed 6rst.
kiif Justice, Make out that, and you
righted.
kamberi, I have the copy of the pannel
and, as the jurors were struck ; and if
: will produce the original, 8i<;ned by
vney and myself, your honour will see
■laint is just.
iki^'Juttice, Clerk, is it so.^ Look
deopy ; is it a true copy of the panoel
kflruck?
Xvii.
A. D. 17S5»
[C90
Clerk. Yea, 1 believe it ia.
Mr. Chief-Justice, How came the names of
the jurors to be misplaced in ti^e pannel an-
nexed to the Venire?
Sheriffl I have returned tbe jurors in the
same order in which the clerk gave them
tome.
Mr. Chief-Justice, hei the names of tbe
jurors be ranged in tbe order they were struck,
agreeable to tbe copy here in court.
Which was done accordingly. And tbe
jury, whose names were as follow, were called
and sworn :
JURT.
Hermanns Rutgers,
Stanley Holmes,
Edward Man,
John Bell,
Samuel Weaver,
Andriea Marsebalk,
Effbert VanBorson,
Tno. Hunt, Foreman,
Benjamin Hildretb,
Abraham Keteltas^
John Goelet,
Hercules Wendover,
Mr. Attorney General opened tbe informa*
tion, wbioh was as follows:
Ait. Gen. May it please your hoaoiin, and
yon gentlemen of the jury ; the informatioii
now before tbe Court, and to which the defecw
idant Zenger, has pleaded Not Guilty, is an in-
formation for printing and uublishiog a false,
8candaU>us, and seditious libel, in which hia
excellency, tbe governor of this province, who
is the king's immediate representative liere, is
greatly and unjustly scandalized, as a persoa
that has no regard to law nor justice ; with niMcC
more, as will appear upon reading the infonni^
tioos. This [practice] of libelling is what has aU
wa^ s been discouraged, as a thing that tends to
create differences among men, ill blood among
the people, and ottentimes great hloo<l8hed be-
tween the party libelling and the party libelled.
There can he no doubt but you, gcutlcmeD
of the jury, will have the same ill u|iinion of
such practices as the judgen have always
shewn upon such occasions : Hut 1 shall say
no more at this time, until you hear tbe infor-
mation, which is as follows :
" New- York, Supreme Court.
" Of the Term of January, in the eighth year of
the reign of our Sovereign Lord King
George the Second, &c.
•• New York, ss. Be it remeroberetl, that
Richard Bradley, esq. Attorney General of our
sovereign lortl the king for the province oINow-
York, who for our said lord the king in this
part prosecutes, in his own proper person
comes here into the Court of our said lord the
king, and for our said lord the king gives the
Court here to understand, and bo informed,
that John I'eter Zenger, late of the city of
Neiv-York, printer, (being a seditious fierson,
and a frequent printer and publisher of talse
news and seditious libels, and wickedly and
maliciously devising the government of otir
said lord the king of this hisau^jesty's provinoe
of New-York, under the adminiauation of hia
SY
.091]
9 GEORGE II.
trial of John Peter Zenger,
[e»
. excellency William Ciwhy, esq. captaiD-iQfoncral
and governor in cliiei' of the said provinre, to
traduce, scandalize and vilify, and bis excel-
lency the said governor, and the ministers and
officers of our said lord the kingj of and for the
Mid province, to brin^ into suspicion, and the
ill opinion of the subjects of our said lord the
Jung residing within the said province) the 281h
day of January in the 7th year of the reign of
our sovereign lord George the Second, by the
grace of God, of Great Britain, France and
Ireland, king, defender of the faith, &c. at
the city of New-York, did falselvj seditiously
and scandalously print and publish, and cause
to be printed and published a certain false, ma-
licious, seditious, scandalous libel, intituled,
'The New- York Weekly Journal, containing
the fVeshest advices, foreign and domestic;' in
which libel (of and concerning his excellency
the said governor, and the ministers and of-
ficers of our said lord the king, of and for the
^d province) among other things tlierein con-
tained are the woras, * Your appearance in
* print, at last, gives a pleasure to many,
* though most wish you had come lairly into
* the open field, and not appeared behind re-
' Irenchments made of the supposed laws
* ag[ainst libelling, and of what other men have
* said and done before : These retrenchments,
' gentlemen, may soon be shewn io you, and
* all men, to be weak, and to have neither law
^ nor reason for their foundation, so cannot long
? stand you in stead : Therefore, you had much
""* better as yet leave them, and come to what
'^ the people of this city and province [the city
* and province of New- York meaning] think
* are the points in question ; (to wit) they
* [the poople of the city and province of New-
' York meaning] think, as matters now stand,
* that their liberties and properties are pre-
' carious, and that slavery is like to be in-
* tailed on them and their' posterity, if some
* past things be not amended; and this
* tliey collect from many past proceedings.'
{Meaning many the past proceedings of his
excellency the said governor, and of the minis-
ters and officers of our said lord the king, of
and for the said province.] And the said at-
torney General of our said lord the king, for our
said lord the king, likewise gives the Court
bere to understand, and be informed, that the
said John Peter Zenger afterwards, (to wit) the
8th day of April, in the 7th year of the reign
of our said lord the king, at the city of New
York aforesaid, did falsely, seditiously, and
scandalously print and publish, and cause to be
printed and published, another false, malicious,
seditious and scandalous libel, entitled,. < The
« New York Weekly Journal, containing the
* freshest Advices foreign and domestic' In
which libel, [of and concerning the government
of the said province of New York, and of and
concerning his excellency the said governor,
and the mmisters and officers of our said lord
the king, of and for the said province] among
other things therein contained are these words,
' One of our neighboQrs [one of the inbabittnts
< of New Jersey meaning] being in eompsBy,
' observing the strangers [some of the inu-
* bitants of New York meaning] foil of eom-
* plaints, endeavoured to persuade tliem to rs-
* move into Jersey ; to which it was repii^
' That would be leaping out oTtha frying-fa
* into the fire : for, says be, we both aresnkr
< the same governor [his excellency the aid
* governor meaning] and your Assembly km
* shewn with a witness what is to be ezpcclii
* from them ; one that was then mo? mg is
* Pensylvania, [meaning one tbat was ihci
* removing from New York with intent to n-
< side at Pensylvania] to which place itis n-
' porteil several considerable men are reoMmsg
* [from New York meaning] expressed in teffw
' very moving, much concern for the cireaB*
* sunces of New York [theimd circnmslaoeei
* of the province and the people of New Ywk
* meaning] seemed to tbmk them very nuNk
' owing to the influence that some men \whm
* he called tools] had in the adminkibsliin
' [meaning the administration of gofuiMiMl
* of the said province of New York] said hewn
* now going from them, and was not to be hurt
< by any measures they should take, bnt ciaU
* not help having some concern for the weUss
* of his countrymen, and should be glad to bcsr
* tbat the Assembly [meaning the General Ai"
* sembly of the province of New York] wM
* exert themselves as became them, by ihse-
* ing that they have the interest of their cosi-
* try more at heart, than the gratification of tsf
* private view of any of their members, or baig
* at all afiected by the smiles or frowns of a g^
* vernor, [his excellency, the said goversor,
« meaning] both which ought et^ualiy to be ds-
* spisetl, when the interest of their country iiit
* stake. You, says he, complain of the hsj-
* yers, but I think the law itself is at an «J-
* We [the people of the province of New Y«k
* meaning] see men's deeds destroyed, jsctoi
* arbitrarily displaced, new courts erected, wili-
* out consent of the legislature [within the po-
* vince of New York meaning] by wbidi it
* seems to me, trials by juries are taken swg
* when a governor pleases, [his excellency tbe
* said governor jiieaning] men of known es-
« tates denied their votes, contrary to the re-
* ceived practice, the best expositor of any law :
« Who is then in that province [meaning ttj
« province of New York] that call [can aB
>..w »»» „«v.«w.. [meanmg
« tion of government of the said province «
« New York] will condescend to let them do it,
< for which reason 1 have lell it [the proviics
* of New York meaning] as f nelievc rows
« will ;' to the great disturbance of the |ieacerf
the said province of New York, to the gresl
scandal of our said lord the king, of his ex-
cellency the said governor, and of all othcfi
concerned in the administration of the goveiv*
ment of the said province, and agaiost the
peace of our sovereign lord the aing, Ul
crown end dignity, &c. Wheienpontlie-^
COS]
AttarMvO
FucrZ
Jlrt*fl Libel.
kl of our Mill lord the kinif, for
a lord ihe kios', prays iLie adiiienient of
the Court bere, in ine premises, and the due
of the law, sgaioBt bim Itie said John
' ~j^,ia this pari tobedaaCitoaDiwer
lord theking of audinihepremiMi,
dec. R. Dbadlet, Attorney Graeral."
To Ihia infonnatiaa the defendant has plead-
tlNot Guilty, and ne are ready to prove it.^
Hr.Chamberabaa not been pleased Id farour
■ivilb his nates, so 1 cannot, for fear of do-
mg him injastice, pretend to aet iIowd hia argn-
■W ; but here Mr. Chamber* set forth very
riaariy, " The nature of a libel, the sreat al-
iMnncea that ouKbt to be made for Kliat tnea
^Mk or write ; that in all libels there must be
MMB porticular penon* ao clearly painted out
tat oo doubt must renMin about *hn is meant ;
,AKbe waain hopes Mr. Attorney would fail
kUa proof, «■ to this point ; and therefore de-
iM Inat be would go on to ezunine bis wit-
Tka Hr. Hamilton, who at the reqneit i
MM of my fKends, was aa kind ■ ~
tm PhUmddi '
a PhUmddphia,
It me on the trial,
■r. Hamiltom. May it please your honour:
liaeoBcenied in Ihii cause on the part of
A.Zenger, the defendant. The iaformalinn
MgiM my client was sent mc, a few days be-
fit I lefl home, with some inslruciioni to let
MkMW how far I might rely upon the truth
tfflMt parts of the papcn set forth in the in*
WUmh, and which are said to be libellous.
Ulhoogli 1 am perfuctly of tlie opinion with
tttpoUeman who has just now spoke, on the
■Mtide with me, as to the common course of
inoedings, I mean in jiulling' Mr. Attorney
a proving, that my client printi'd and puh-
Ihnae pa[iers menlioncil in Ihe informa-
Ih ; yet I cannot think il proper tor me (with-
Nl doing violence lu my own principles) to
fat the publication nf a cumplainl, which, 1
Uak, i( ttie right ofeiery free-born subject to
Mke, when the matters so published can he
Mpported with triilli ; and therefore I'll aate
Xr.AUomey the trouble of exaroitiinghla wit-
KMi tolhatpoinl; and I do (lor my client)
BofeSB, that he both primed sikI published the
htaewBpapera set forlU in the informalinn,
■f I hope in so dtnng he has committed no
Hr. HosiiVton. If you brought them here
*tf ta prove the printing and publishing of
I Mtaewapapers, we have acknowledged lliat,
' Miball abide by it.
' Bbc my Jonmeyman and two sods (with
■Mil otbeia subpieoa'U by Mr. Attorney, to
pa nidenee ajgainst me) were discharged,
M Ikcn »aa aJcDc* in the Court for loioe
Oa^H
A. D. 17S5. [m
Ut. Chief Jialici. Well, Mr. Altomey, «iU
you proceed ?
Mr, Altornty. Indeed, Sr, as Mr. Hamil-
ton has conlesaed the printing and publisbing
these libels, I think the Jury must Hnd a Ter>
diet for Ihe king ; far supposing they yttn
tme, the law aayi that they are uot Ihe less li-
bellous for that ; nay initerd the law sayi,
their being true is an aggraTalinn of the crime,
Mr. Hamillim. Not so neither, Mr. Altomeji
there are two wonla to lliat bariraiu : f hi>pe It
is not onr bare printing and publishing a paper,
that will make it a libel : you will Lave aoma-
Ihing more to do, before tou make my client a'
libeller ; for the words themselies must be li-
bellous, tliat is false, scandalous, and seditiODS,
or else they are not guilty.
As Mr. Attorney nas not been pleated to fa-
vour us witii his argoment which he read, or
with the DOlCB of il, we cannot take upm m lo
set down bis words, but only to shew tbe book -.
cases he ciled, aud ibe general sct^ of bb
argument, which he drew from those authori-
ties. ■ He observed upon the eicellancy, aa
well as UM of governmeot, and tbe gre^i^
gard and rerereoce which bad been constaDtIr
paid to it, both under the law and the foapd.
That by ^emment we were protected m onr
lives, rehgion and propertiea ; and thai, for
these reasoDB, great care bad always been taken
ry thing that might lend loacan-
magistraies, and otbers concerned b Ihe
isliatian iif the government, especially
the supreme niajiistrate. And that there were
many instances of very severe Judgments, and
of punishments inflicted npoD such as bad at-
tempted to bring the government into con-
tempi ; by publishing lalse and scurriloiia
libels against it, or by speaking evil and acan-
dalous words of men lu auUiorilj ; to the
great disturbance of the public peace.' And
lo support this, he cited 5 Coke ISl. (I sup-
pose it should be 135.) Wood's Instil. 430.
3 Lilly 166. 1 Hawkins 7i. 11. 6. From
these looks he insisted, ' That a libel waa a
malicious defamation of any person, expressed
either in prinliiig or writing, signs or pictures,
to asperse the repulstiun of one lliat is alive, or
the memory of one that is dead ; if he ia a pri-
vate man, tlie libeller deserves a severe panisb-
inrni, but if it ii against a magititrale, or other
public person, it is a greater offence ; for thia
ily Ihe breach of llie peace, but
scandal of govemmsnt can there b .
have corrupt or wicked magiMralcM lo be ap-
poinleil by the king, to govern hia subjecU
under him ? And a greater imputation to the
state cannnl be, than lo suffer audi corrupt men
la sit in the sacred seat of Justice, or to bare
any meddling in, or concerning Ihe administra-
tion of juslicc' And from the same hooka
Mr. Altorncy insisted, that whether Ibp person
det'anivd ia a jirivBle man or a maifistrsle, whe-
ther living or dead, whether llie hbel is true or
false, or if the parly against whom il it made ia
of good or evif fame, it it neicrlheint a libal.
(595]
0 GEORGE II.
iFoT iu a settled slate of Kovernmcnt, (he party
griefed ought to comi>laiii for tfvery Injnry
done hiin, in thr ordinary course of the law.
And as to its publication, the law had taken so
great care of men's reputations, that if one ma-
liciously repeats it, or singfs it in the presence
of another, or delivers the libel ur a copy of it
over, to scandalize the party, he is to be pu-
nished as a publisher of a libel. He said it was
likewise evident, that libellingf was an offence
against the law of G04I. Acts xxiii. 5. Then,
said Puul, I wist not, brethren, that he was the
high priest : For it is written, Thou shalt not
speak evil of the ruler of the people. 2 Peter
ii. 10. Despise government, presumptuous are
they, self willed, they are not afraid to s|)eak
evil of dignities, &c. He then insisted that it
Ivas clear, both by the law of God and man,
that it was a very great offence to speak evil of,
or to revile those in authority over us; and
that Mr. Zengcr had offended in a most noto-
rious and gross manner, in scandalizing his ex-
cellency our governor, who is the king's im-
mediate representative, and the supreme ma-
gistrate of this province : for can there be any
iuing more scandalous said of a governor than
what is published in those papers ? Naj, not
only the governor, but botn the council and
assembly are scandalized ; forthere it is plainly
said. That ' as matters now stand, their liberties
and properties are precarious, and that slavery
is like to be entailed on them and their pos-
terity. And then again Mr. Zcnger says.
The assembly ought to despise the smiles oi*
frowns of a governor ; that he thinks the law
is at an end ; that we see men's deeds destroyed,
judges arbitrarily displaced, new courts erected,
tvithout couscnt'of the legislature ; aud, that it
seems trials by juries are taken awuy uhen a
governor pleases ; that none can call any thing
their own. Ioniser than those in the adminis-
tration will condescend to let them do it.' —
And Mr. Attorney addetl^ < That he did not
know what could be said in defence of a man,
that had so notoriously standalizcd the governor
and principal magistrates and officers of the go-
verunicnt, by charging them with ilenrivi.^g
the people of their rights and liberties, and
taking away trials by juries ; and in short,
putting 0A\ end to the faw itself If thi:^ was
not a libel, he said he did not know what uns
one. Such persons as will take those li1>oriies
with governors and magistrates, he thoii<;ht,
ought 10 suffer for stirring np scdljtion and di ;-
content nrnong the peojde. And concluded,
by >aying, tiiat the government had been very
tuiu'li tradijccil and exposed by I^Ir. Zcngtr,
before lie was taken notice of; that at last it
vas the opinion of the governor and council,
that he ought not to be 8uffere<l to go on, to
disturb the peace of the government, by pub-
lishing such libels against the governor, and
the chief |)ersons in the government ; and
therefore they had directed this prosecution, to
Sut a stoii to this scandalous and wicke*! prac-
oe, of lioelling and defaming his majesty's go-
VmiineDt aoa disturbing h» iBBjet(y'8 peace/
Trial of John Peier Zenger, tflSJ
Mr. CAa7R6<;rs then mimmcd «f tefliejiny,
observing with great strength of rtaaim ea
Mr. Attorney's defect of proof; that the papen
in the information were false, mahcioos or se-
ditions, w hich ^ as incumbent on him to pravt
to the jury, and without which thej^ coaM Ml
on their oaths say, that they were Mil
charged.
Mr. Hamilton. May it please 3roar ha-
nour : I agree with Mr. Attorney, that govern-
ment is a sacred thing ; bat I difler very
widely from him, when he would innmiaic^
that tiie just complaints of a number of meo,
who suffer under a bad administmtion, is libd-
ling that administration. Had f believed thit
to be law, 1 should not have given the Cowt
the trouble of hearing any thing that I coald ny
in this cause. I own, when I read the infonnt-
tion, I had not the art to find out (without the*
help of Mr. Attorney's innuendos) that the ^
vernor was the person meant in every iieriodcf
that news-paper ; and 1 was inclined to beliere,
that they were wrote by some, who from an ex-
traordinary zeal for liberty, had misconstraci
the conduct of some persons in authoritjr ^
crimes ; and that Mr. Attorney, out of bis !••'
great zeal for power, had exhibited this iatlBr-
mation, to correct the indiscretion of my
client ; and at the same time, to shew liis n-
periors the great concern be had, lest d»y
should be treated with any undue freedoa-
r»ut from what Mr. Attorney has ju&t now saiJ,
to wit. That this prosecution was directed by tbe
governor and council, and from the extraordi-
nary appearance of people of all condiiioD*
which I observe in Court upon this occasioD,!
have reason to th'.nk, that those in tbearitni*
nistration ha\c by this pruseculion sonietliing
more in \icw, nud that the people belieie
they have a good deal more at stake than 1
appreliended ; and, therefore, as it is become oiy
duty, to be both plain and particular in thi*
cause, \ beg leave to bespeak the patience 01
the Court.
I was in hopes, as that terrible court, wher»
those dreadful judgments were given, and that
law establishc'l, which Mr. Attorney has pro-
duced for autl. unities to support this cause, was
long ngo laid aside, as the most dangerou*
court to the liberties of the people of Enjr'an*'
that evei* was ki:i»wn in that kingdom ; that
■>Tr. \ttorncy knowing tlis, would not ha**
otlcmpli'd to set up a Star- Chamber here, nort#
make their judgments a prcrrtdpnt to us : fa^
it is well kno\vii, that what \ oull have bcf*
judged treason in those da} s for a man to speak*
I think, has since not oidy been praeMseda*
la'.vfiil, but the contrary doctrine has been bdP
t'j be law.
In IJrewsler's ca<:e, ft>r prii:ting. That tb*
subjects might defend their rights and lilierlif^
by arms, in case th(.> kin^r should gn about 1^
destroy them, he was told, by the chief- jusCieP*
that it was a great mercy he was not procerdfA
against for his life ; for that to say the kii^
coukl be resisted by arms in any can irbil^
997]
for a Libels
mettr^ wm evpmg (relison. And yet we see,
MBce thai time, T>r. Sachevercll wax seiitoneed
IB tbe hifrbeat court in Great JSritain, tor say-
inirt that such a lesistnoce i»as not lawful.
Beiideii, as times have made very great
chaof^ iu the lawa el* £ntr|aiid, &e in my
•piniou. there is good reason tliat placet shoulil
do so too.
Is it not surprising to see a subject, upon his
nenf iD^ a commission from the king to be a
ytwmor of a colony iu America, immediately
iBifining himself to be vested with all the
Eiogatives belongintc to the sacred person of
prince? And which is yet more astonishing,
ee that a people can be so wild as to allow
•T and acknowledge those prerogatires and ex-
mptions, e?en to their own destruction ? Is it
IS bard a matter to distinguish between the
i^inty of our Rovereign, and the power of a
• fifeiuoi of the plantations Pis not this making
fery free with our prince, to apply that regard,
iWdience and allegiance to a suk^ect which is
Ar odW to our sovereign ? And yet in all the
MM which Mr. Attorney has cited to shew
As duty and obedience we owe to the snpreme
Slislrate, it is the king that is there meant
■nderstood, though Mr. Attorney is pleased
to iige them as antborities to pnne the hei-
mmesi of Mr. Zenger's offence against tlie
prcmor of New- York. The several planta-
iNDs are compared to so many large corpora-
tons, and iierhaps not improperly \ ana can
My one give an instance, that the mayor or
iMid of a corporation ever put in a claim to the
Mocd rights of majesty? Let us not (^vhile
*eare pretending to pay a great regard to our
pnooe and hUi peace) make hold to transfer
tittt allegiance to a suliject, which mc owe to
Mr king only. What strange drctrinc is it, to
piws every thinsf for law here which is so in
Eo^aod ? I believe i% e should not think it a
bfmir, at present at least, to establish thin
^tice. In Kngiand so trrf*at a rrgnnl and
mnvnce is bad to the ju'lges, (C. 3 Inst.
140.) that if any man strikes up.othrr in West-
Bmi«ter-ball, while the ju<I::ph are bitting, he
riiall lose his rii^ht-hiind, and forfeit his land
lid goods for so tlt/niif. And thoiifrh the
jvd^es here claim all the powtT^i nnd autho-
nties within this government, that a court of
Kio^^^s- bench has in Enf^Iand, yet I believe
Mr. Attorney will scarcely sny, that such a
Hnikhment could be le«i^ali v innicS d on a man
W ciimnitting such an oflVncr, In the pre-
■Mccof tbe judges sittinp^ iu uny court nitliin
Ifce province of New- York. The reason is oh-
^iMs; a quarrel or riot in Nctv- York cannot
piRbly be attended with thoso darcrtrous oon-
M^iccs that it might in Westminster- hnll ;
1^(1 hope) will it be alleged, that ony mishe-
■Miinir to a governor in the plantations, will,
MMif|[bt to be judged of or punislird, as a like
Milifulness woultl hcto our sovereign. From
|l which, I hope Mr. Attorney will not think
■^per to apply his law-cnses (to support the
*BM af bis governor), which have only hern
Ngvdt whow the king's lafcty or honour iras
A. D. 17SS. [G9S
eoncemed. It will not be denied but that ft
freeholder, in the province of New- York, baa
as food a right to the sole and separate use of
his lands, as a freeliokler in England, who haa
a right to bring an action of trespass against
his neighbour, for suffering his horse or coir
to come and feed upon his lands, or eat his
corn, whether inclofied or not iock)sed; and
yet I believe it would be looked upon as a
strange attempt for one man here to bring an
action against another, whose cattle and horses
feed upon his grounds not inclosed, or indeed
for eating anil treading down his com, if thai
were not inclosed. Numberless are Che in*
stances of this kind that might be f|[iven, to
shew, that what is good law at one time, and
in one place, is not so at another time, and in
another place ; so that I think the law seema
tb expect, that in these parts of the work), tneii
should take care, by a p^ood fence, to preserre
their property from the injury of unruly beasts.
And perhans there may be as good a reason
why men should take the same care, to maka
an honest nnd unri||[ht conduct a fence and
security against the mjnry of unruly tongocs.
^Ir.Attomey, I don't know what the gen-
tleman means, by comparing cases of me*
holders in England with the freeholders here.
What has this case to do with actions of tres-
pass, or men's fencing then- ground ? The
case Itefore the Court is. Whether Mr. Zenger
is guilty of libelling bis excellency the go-
vernor of New- York, and indeed the whole
administration of the government ? Mr. Hamil-
ton has confessed the printing and publishing,
and I think nothing is plainer, than that the
words in the information are scandalous, and
tend to sedition, aiid to di^squiet the minds of
the people of this province. And if such
papers are not libels, 1 think it may be said,
there can be no such thing as a libel.
Mr. Hamilton, May it please your honour,
1 cannot agree with MV. Attorney ; for though
I freely ackuo^^ ledge that there are such things
as libels, yet I must insist iit the same time,
that what my cHcnt is charged with, is not a
libel ; and I observed juat now, that Mr. At-
torney, in defining a libel, made use of the
words, scandalous, seditious, and tend to dis-
quiet the people ; hut (whether with design, or
not, I will not say) he omitted the word false.
3Tr. Attorney.' I think I did not omit tlia
word falsic : but it has been said already, that
it may be a libel, notwithsianding it may ba
true.
Mr. Unmiltm, In this I must still differ with
Mr. Attorney ; for 1 deprnd u|khi it, we are
to be trifd upon this infi'rmntion now bi*fore
the Court and jury, and to which we have
piraded Not Guilty, and by it we are charged
with printing and publishing a certain faUe,
malicious, seditious: and srandnlous libel. This
word false must Svwo s<»nio meaning, or else
how r;ime it there? I hopr Mr. Atlorory will
not say he put it there by change, and I am fif
opinion his informstion would not be g«Mid
without it. Dut to kliew that it is the princi •
61)UJ
9 GEORGE 11.
Trial of John Peter Zenger,
[700
pal thing, wbich, in my opinion, makes a
fibel, 1 put the case, the information bad
been for printing and publishing a certain true
libel, would that l»e the same thing ? Or could
3Ir. Attorney support such an information by
any precedent in the English law ? No, the'
^ilshood makes the scandal, and both make
the libel. And to shew the Court that 1 am
in ffood earnest, and to sa?e the Court's time,
and Mr. Attorney's trouble, I will agree, that
if he can prove the facts charged u|>on us to
be false, I'll own them to be scandalous, se-
ditious, and a libel. So the work seems now
to be pretty much shortened, and Mr. Attorney
bas now only to prove the word false, in order
to make us guilty.
Mr. Attomeif, We have nothing to prove ;
you have confessed the printing and publish-
ing ; but if it was necessary (as I insist it is
not), bow can we prove a negative? But I
bopesome regard will be bad to the autho-
rities that have been produced ; and that sup-
posing all the words to be true, yet that will
not help them ; that chief justice Holt, in his
charge to the jury, in the case of Tutchin,
made no distinction, whether Tutchin's papers
were true or false ; and as chief justice Holt
bas made no distinction in that case, so none
ought to be made here ; nor can it be shewn
in all that case, tliere was any question made
about their being false or true.
Mr. Hamilton. 1 did expect to bear, that a
negative cannot be proved; but every body
knows there are many exceptions to that ge-
neral rule ; for if a man is charged with kill-
ing another, or stealing his neighbour's horse ;
if he is innocent in the one case, he may
prove the man said to be killed to be really
alive ; and the horse said to be stolen, never to
have been out of his master's stable, &c. and
this I think is proving a negative. But we
will save Mr. Attorney the trouble of proving
a negative, and take the onus probandi upon
ourselves, and prove those very papers that are
called lihds to be true.
Mr. Chief Justice, You cannot be admitted,
Mr. Hamilton, to give the truth of a libel in
evidence. A libel is not to be justified ; for it
is nevertheless a libel that it is true.
3]r. Hamilton, I am sorry the Court has so
soon rcHolved upon that piece of law ; I ex-
rtcted iirst to have been heard to that point,
have not in all my reading met with an au-
thority that says, we cannot be admitted to
give the truth m evidence, upon an informa-
tion for a libel.
Mr. Chief Justice, The law is clear, that
you cannot justify a libel.
Mr. Hamilton, 1 own that, may it please
your honour, to be so ; but witli submission f
understand the word, justified, there to be a
justification by plea, as it is in the case upon
an indictment tor murder, or an assault and
battery ; there the prisoner cannot justify, but
plead Not Guilty : yet it will not be denied but
be may, and always is admitted to give the
InKh 01 tbe fact, or any other matter in evi-
dence, which goes to his acqaittal; as in
murder he may prove it was in defence of his
life, his house, &c. and in assault and battery,
he may give in evidence, that the other party
struck first, and in both cases he will be le-
quitted. And in this sense 1 understand Ibi
word justify, when applied to tbe case bdks
the Court.
Mr. Chief Justice. I pray shew that yoacaa
! give the truth of a libel in evidence.
f/lr. Hamilton. I am ready, both from what
1 understand to be the authorities in tbe case,
and from tbe reason of tbe thing, to sbew that
we may lawfully do so. But here I beff leave
to observe, that informations for libels is a
child, if not bom, yet nursed np, and bron^
to full maturity, in the Conrt of tbe Sfiir^
Chamber.
Mr. Chief Justice, Mr. Hamilton* yon*!!
find yourself mistaken ; for in Coke's Insti-
tutes you'll find informations for libels, loiy
before the Court of Star-Chamber.
Mr. Hamilton. 1 thank your bonomr ; tbit
is an authority I did propose to speak to by soi
bve : but as you have mentioned it, I'll reid
that authority now. I think it is in tbe 3 Co.
Inst, under title Libel ; it is the case of JohB
de Northampton for a letter wrote to Robert dt
Ferrers, one of the king's privy council, (Cob
3 Inst. 174,) concerning sir Wuliam Scot, cbicf
justice, and his fellows ; but it does not appcir
to have been apon information j and I have good
grounds to say it was upon indictment, as wm
the case of Adam de Ravensworth, just men*
tioned before by lord Coke under the sams
title ; and I think there cannot be a greater, at
least a plainer authority for us, than the judg-
ment ill the case of John de Northamptoo,
which my lord has set down at large. " Et
quia preedictus Johannes cognovit dictam Lilo^
ram per se scriptam Roberto de Ferrers, qoi
est de Conciiio Regis, quse litera continet in w
nullam veritatem," &c. Now Sir, by this
judgment it appears the libellous words were
utterly false, and there the falshood was the
crime, and is the ground of that judffmeot:
and is not that what we contend for ? Do not
we insist that the fnlshood makes tbe scandal,
and both make the lilcl ? And how shall it be
known whether the wonis are libellous, tliatis,
true or false, but by admittiii^ us to prove theoa
true, since Mr. Attorney will not undertake to
prove them falfts ? Besides, is it not ag^ainst
common sense, that a man hhould be puoisbed
in the same degree for a true libel (if any sucfa
thing could I)p) ns for a false one ? I know it is
said, that truth makes a libel the more provok-
ing, and tliercf'ore the ofFenco is the ipreater,
and conscq uMitly the judgment should be tbs
heavier. Well, suppose it \\creso, and let of
agree for once, that ttulii is a greater sin tbao
falshood : yet as the oflV'iices arc not equal, and
as the punishment is arhitrary, that is, accord-
\ng as the judges in their discretion shall direct
to be inflicte<l ; is it not absolptely neceascrj
that they sliould know whether the libel is true
or false, that they may by that means be able
f(yr a Libel,
ortion the panisfament? For wotild it
1 sid caie, if the judges, for want of a
ffmation, should cnance to give as se*
odgroent against a man for writing or
Aff a lie, as for writing or publishiug a
And yet this (with submissioD,) as
Mia and ridiculous as it mav seeoi to be,
latural consequence of Mr. Attorney's
s, that truth makes a worse libel than
I, and must follow from his not proving
ten to be false, or not suffering us to
lein to be true. But this is only rea-
iipon the case, and I will now proceed
, what in my opinion will be sufficient
ce the Court to allow us to prove the
* the words, which in the information
led libellous. And first I think there
be a greater authority for us, than the
ot I just now mentioned in the case of
i Northampton, and that was in early
lod before the Star-chamber came to its
of power and wickedness. In that
Qt^as 1 observed, the falshood of the
hich was wrote, is assigned as the very
of the sentence. And agreeable to this
urged by sir Robert Sawyer in the trial
Itfea Bishops,* that the talsity, the ma-
d seditions of the writing, were all facts
iroved. But here it may be said, sir
was one of the Bishops* counsel, and his
iot is not to be allowed for law : but I
only to shew, that we are not the first
ve insisted, that to make a writing a
must be false. And if the argument of
sel must have no weight, I hope there
more regard shewn to the opinion of a
and therefore f mention the words of
Powel in the same trial, where lie says
>. Petition of the Bishops, which was
i libel, and upon which they were pro-
I by information,) that, to make it a
must be false and malicious, and tend to
I ; and declared, as he saw no falshood
ce in it, he was of opinion, that it was no
Now, I should thioK this opinion aldhe,
case of the king, and in a case wliich
)g had so much at heart, and which to
f has never been contradicted, might be
ient authority, to entitle us to the liberty
ring the truth of the papers, which in
brmation are called false, n»alicious, se-
and scanilalous. If it be objected, that
inion of the other three judges were
him, I answer, that the censures the
snts of these men have undergone, and
irobation justice PowePs opinion, his
mt and conduct upon that trial, has met
sd the honour he gained to himself, for
to speak truth at such a time, upon such
ision, and ui the reign of such a king, is
lan sufficient, in my humble opinion, to
toot insisting on hiH judgment, as a full
ty to our purpose ; and it will lie upon
lamey to shew, that this opinion has,
III time, been denied to be law ; or that
* Bee tht Caic, vol. 12, p. 183.
A. D. 1755-
1109
justice Powel, who delivered it, has eter been
condemned or blamed for it, in any law-booft
extant at this day } and this, 1 will venture to
sa^, Mr. Attorney cannot do. But, to make
this point yet more clear, if any thing can be
clearer, I will, on our part, proceed and shew,
that in the case of sir Samuel Barnardiston, his
counsel, notwithstanding he stood before one
of the greatest monsters that ever fHresided in
an English court (judge Jefferiea,) iusfstnl on
the want of proof to the malice and seditioos
intent of the author, of what was called a \\M,
And in the case of Tutchin, which seems to be
Mr. Attorney's chief authority, that case is
•gainst him ; for he vras, upon his trial, pot
upon shewing the truth of bis papers, but did
not; at least the prisoner was asked by the
king's counsel,* whether he would say they
were true? And as he never pretended that
they were true, the chief justice was not to say
so. But the point will still be clearer, on otir
side, from Fuller's case,*!* 4br falsely and wicIe*
edly causing to be printed afalseandicandaknis
libel, in which (amongst other things) were
contained these words. ** Mr. Jones lias also
made oath, that he paid 5,000/. more, by the
late king's order, to several persons in places of
trust; that they might complete my ruin, and
invalidate me for ever. Nor is this all ; for
the same Mr. Jones will prove, by undeniable
witness and demonstration, that he has distri-
buted more than 180,000/. in eight years last
past, by the French king's order, to persons in
public trust in this kingdom." Here, yon see,
IS a scandalous and infamous charge against
the late king ; here is a charge, no less than
high treason, against the men in public trust,
for receiving money of the French king, then
in actual war with the crown of Great Britain ;
and yet the Court were fur from bearing him
down uith that Star-chamber doctrine, to wit,
that it was no matter, whether what he said
^as true or false; no, on the contrary, lord
chief justice Holt asks Fuller, *' Can yon make
it appear they are true ? Have you any wit«
nesses? You might have had subpoenas for
your witnesses against this day. If you take
upon you to write such things as you are
charged with, it lies upon you to prove them
true, at your peril. II you have any witnesses,
I will fiear them. How came you to write
those books which are not true? If you have
any witnesses produce them. Ifyou can offer
any matter to prove what you have wrote, let
us hear it." Thus said, and thus did, that great
mau, lord chief justice Holt, upon a trial of the
like kind with ours ; and the rule laid down by
him, in this case, is, that he who will take upon
him to write things, it lu« u|K>n him to prove
them at his peril. Now, Sir. we have acknow-
ledged the printing and publishing of those
papers, set forth in the information, and (with
the leave of the (/ouri) agreeable to the rule
* Sec his Case, vol. 14, p. 1123.
t See his Case, vol. li» p. :»18,
T07J
9 GEORGE II.
Trial of John Peter Eenger,
[701
pressed, I mean iu a free grofernment. It is
true, in times past, it was a crime to speak
truth ; and in that terrible court of Star-
chamber, many worthy and brave men suffered
for so doing ; and yet, even in that court, and
in those bad times, a great and good man durst
say, what I hope will not be taken amiss of me
lo say in this place, to wit, " The practice of
informations for libels is a sword in the hands
of a wicked king, and an arrand coward, to cut
down and destroy the innocent; the one cannot
becaase of his high station, and the other dares
not, because of his want of courage, revenge
himself in another manner."
Att. Gen, VrAy, Mr. Hamilton, have a care
what you say; donH go too far neither : I don't
like those liberties.
Mr. Hamilton. Sure, Mr. Attorney, you
won't make any applications : All men agree,
that we are governed by the best of kings ; and
1 cannot see the meaning of Mr. Attorney's
cantion : My well known prmdples, and the
•cpse I have of the blessings we enjoy under
his present majesty, make it impossible for me
to err, and, J hope, even to be suspected, in
that point of duty to my king. May it please
jrour honour, I was saying, that notwithstand-
ing all the duty and reverence claimed by Mr.
Attorney to meo in authority, they are not ex-
empt trom observing tlie rules of common
justioe, vcither in their private or public capa-
padties ; the laws of our mother- country know
no ezoeption. It is true, men in power are harder
^ be oome at, for wrongs they do, cither to a
private person, or to the public ; especially a
fovernor in the plantations, where they insist
pon an exemption from answering complaints
of any kind iu their own government. We are
Indeed told, and it is true they are obliged to
^swer a suit in the king's courts at West-
minster, for a wrong done to any person here :
But do we not know how impracticable this
b to most men among us, to leave their families,
iwbo depend upon their labour and care fur
lieir livelihood) and carry evidences to Britain,
and at a great, nay, a far greater expence,
Iban almost any of us are able to beai', only to
prosecute a governor for an injury done here ?
But when the oppression is genera], there is no
remedv even that way: ^jo, our constitution
has (blessed be God) given us au opportunity.
If not to have such wrongs redressed, yet, by
our pnidenceand resolution, we may in a great
measure prevent the committing of such
wron(p, by makins^ a governor sensible, tliat
at is his interest to be just to those under his
care ; for such is the sense that men in general
il mean freemen) have of common justice,
liat when they come to know that a chief ma-
gistrate abuses the power with which he is in-
trusted for the good of the people, and is at-
tempting to turn that very power against the
innocent, whether of high or low degree, I say,
mankind in general seldom fail to interpose,
«nd| as far as thev can, prevent the destruction
•f tbeir fellow su^ta. And has it not often
been seen (and, I hope, it will always be seen)
that when the representatives of a free people
ArCf l>y ju*t representations or remoii8lnuice%
made sensible of the sufferings of their feUow
subjects, by the abuse of power in the hasdi
of a governor, they have cleclared (and loidy
too) that they were not obliged by any faw to
support a governor who goes about to destroy a
Erovince or culony, or tneir privilegesywfaicb
y his majesty he was appointed, and by lbs
law he is bound, to protect and encoungei
But I pray it may be considered, of what uk if
this mighty privilege, if every man that snftn
must be silent? And if a man roust be tslwB
up as a libeller, for telling his sufferings to hk
neighbour, I know it may be answered, Hare
you not a legislature P have you not a fionsa
of Representatives, to whom vou may cooh
plain P And to this I answer, We have : But
what then ? Is an Assembly to lie troubled with
every injury done by a governor ? Or are tbef
to hear of nothing but what those in the ailmi-
nistration will please to tell themp Or what
sort of a trial must a man have ? And bow
is he to be remedied ; especially if the casa
were, as I have known it to happen ia
America in my time, that a governor who bu
places (I will not say |)eiisionii, for, I beliera
they seldom giic that to another which diey
can take to themselves) to bestow, and can or
will keen the same Assembly (alter he has laO'
delled tnem so as to get a majority of tha
House in his interest) lor near twice seven yean
together? I pray, what redress is to be ex-
pected for an honest man, who makes bis com*
plaint against a governor to an Assemblvi «lw
may pro]>crly enough be said to be made by
the same governor against whom the complaist
is made ? The thing answers iteelf. No, U if
natural, it is a privilege — 1 will go farther,
it is a right which all freemen claim, and are
intitled to, to complain when they arc hurt ; they
have a ri^ht pubiicl\ tu reuionsirate against tot
abuses oi power, iu the sti-ongest terms, to pot
their nei^libuui'S upon their guard, against tba
cratl or open iLolence of men in authority, and
to assert with courage the sense they hare of
the blessings ui' liberty, the value they put upoo
it, and their le&olution at all bazaras to pre-
serve ft, as one of the greatest blessings heafca
can bestow. And when a House of ^scmUj,
composed of honei>t freemen, sees the genem
bent of the people's inclinations, that it it
which must and will (I'm sure it ought to)
weigh with a legislature, in spite of all ths
emit, caressing, and cajoling, made use of by
a governor, to divert them from hearkening to
the voice of their country. As we all very well
understand the true reason, why gentiemes
take BO much pains, and maike such gnat in-
terest, to be appointed governors, so the desiga
of their appointment is not less manifest, ns
know his majesty's gracious intentions to his
subjects ; he desires no more tliau that bis peO«
pie in the plantations should be kept up to uar
du^ and allegiance to the crown of Great Bri«
tain ; that peace may be prefer? «d aiaoiig4
IKmb, nJ juitlce impartially ailmimfltereil ;
Ibalvenaybe^Teraerl snnstoreiiiler us use-
fill 14 nut inollipr-ci)un(r}i by encourn^ng ub to
*tk« viA niae such coinmiHtiiit* u may be
hmM to Great llriiaiii. Bui wilt Any one aay,
Itol al or any of Ihew gao^i emls are to be el'-
fttti bjF a gOTernor'a Btltiiig bi« pe<i|ile loge-
IbtT fcr ilieean, iimI hv the aisisiiiBce or one
|Vt at ibe jKopIo to plague and plunder the
uStaJ Tlie GOmmtsiioii wliicti|^tenior8l>eaT,
«yi*lhey ekeeuie the powers ^ren (tiem, ac-
wriingto the intent ot the royil Tranlor, ei-
p«Maa io thdr coitiiiiiisiniis, reqaires and dc-
■nH*«ry great rererence and subiDinion ; but
wfema gnrern or depart* from the duty enjui tied
InBbyliiiiDTereJip, andactsaairhe was lesa
•MOnotable ihan tlie rojal hand thai ga<'t bim
•II that {■own and bonour irhich he is posaes^ed
t^diiasets people upoa examioingfaud enquir-
Bf iaia Ibe poirer, authoriiy, and duty of'suoh
■ na^ialratf. ind bi raimpare those wilh bis
CMdoet ; and just as far OS they find heexceeds
the boiiiiils "f his autliority, or falls short in do-
iw imparliBl justice lo the |>eople under his ad'
uonMration, so Car ihey very often, in relum,
CMM abort in their duly to such a ^vernor.
Par Mwer alone will noitnske a man beloved ;
ud 1 have heaid it obserTed, lliat the man trho
«■■ Deitber good nor tvise before bis bciug
tudr ■ governor, never mended npon his pre-
Ihramt, bui hua be«n generally observed to be
iriMlain aad virtue, can only be kept in bound*
It the law ; aud by boivmiicii the farther ibey
DiBk tliemselvrs out of (he reach of ibe Ian,
\j to iimcli the ninte wickol and cruel Ihey
■I*. I wish there were no inaunces of Ihe kind
at tfiia day. And wtiereier this happens to be
the c»e ut s I'otemor, unhappy are Ihe people
■Bd«T bis all ministration, andui Ibeeod hen ill
find hiinseif sn too ; for the people will neither
Inc faitn Dur support him. I make nu doubt
■Mrc are thone here, *ho are Efalously
Bwd fi>r the success of this prosMulion ;
Kl bopctbeyare not many; and even
>0f those, I am persuaded (when they
'tr to what Irnglhs such proseculions may
b carried, anij hnw deeply the liberties of the
pMple may be afiecled by such means) will not
adabiifeb)' theirprcMnlsenlitneats; I say, not
aU : for the man who, from au intimacy and
aeqiWRitBDGc with a froveriMH-, hascunceived a
ysrauual regard for him ; tlie man wboliasfelt
Mneof the nrukei of his power; the man who
WwvM that a ^ternor has a regard for him,
•HlMKi6dei inhim ; it is natural for such coen
la wMi well to the affairs of such a governor ;
mhI a« ihey may he men of honour and gencro-
rfty, may, and no doubt will, wiih him success,
wa far as the rights anil privileges of their fel-
bw-ciiizrni arc not affected. But as men of
haai>iiT, I can apprehend oothing from them ;
theywiil nrvvr «icc«d that poinl. There
aUma IImI are uodar stronger itbiigniions,
A. D. ITS*
tame post or preferment : lucb men have,
what IS communly called, duly and i;ratilud«
ta inlhience their inclinations, and oblige them
in go his lengths. I know men's interests ai*
very near lo Ibem, and they will do much,
raiher than forego the (arnur of a governor,
andn I'veliliood It Ibe same time i but I oan
with very Just grnnnds hope, even from ihoM
men, wbon) I will siip)>ose lo be men of lionour,
and conscience lou, that when they see the li-
berty of their country is in danger, eiilier bj
their concurrence, or even by their silence,
tlicy will, like Englishmen, and like them-
selves, freely make a sacrifice of any prefer-
ment or favour, rather than be accessary lo
destroying the libeitiea of llicir country, and
entaiimg slavery upon llieir posterily. Tlier*
are indeed another set of men, of whom I hare
no hopes; I mean, such who laif aside all other
coDside rations, and are ready to Join with power
in any shape, and with many or any sort of
men, by whose means or interest Ihey ma^r ba
assisted lo gratify tbrir malice and envy, against
those whom ihey have been pleased to hate ;
aud that for no other reason, tut because they
are men of abittiiea aniT integrity, or at least
are possaased of some valuable qualiiiea far su-
perior to their own. But as envy is the sin of
Ihe devil, and therefore very bard, if at all, to
be repented of, I will believe tliere are bnl few
of this deleslable and worthless sort of men, nor
will Ihcir opinions or inclHiations have any in-
fluence U|Hin this trial. Bui lo proceed : I beg
leave lo insist, that the right of complaining or
remonstrating is natural; end the restraint
upon this natural right is the law only, and
that those restraints can only extend to what a
falie ; fur as it is truth alone which can excuM
or Justify any man lor complaining of a bad ad-
ministration, I as frankly agree, that nathiog
ought 10 eicnse a man who raises a liiM
charge or acmsBtion, even agaiost a privata
person, and that no manner of allowance ooght
to be made to him wlio does so againit a pub>
He magistrate. Truth ought lo govern tba
whole affair if libels, and yei the |Niny accused
runs risk enough even then ; for if he lails of
proving every little of what he has wrote, and
to the safufuclion of the Court and Jury too,
he may find tohiscmt.lbat when the pronecu-
tion is set on foot by men in power, it seldom
wants friends lo levour it. And from ihenca
(it is said) has arisen the great divrraiiy of opi-
nions among Jiidirei, about whol words were or
were not scandalous or libellous, I bdicve it
will be granted, that there is not greater un-
certainty in anv part of the law. than about
words of scandal : it would be niis-speniling of
the Court's time lo mention the cases ; thry
may be said to lie numberless ; and ibereforti
the utmost care ought to be tak<-n to follfrwing
precedenta ; and tbetiraeawhenthe judgment*
were given, which are (tunied tor auihoniies in
the cane nf lilieU, are much to b»> rr^nled. 1
think it will ho ogrerd, that ever since the
time of the Slar.Cbamber, where the inwt ar-
bitrarj sntl dcuiucttvejndgmniu aad o^mioas
i
711]
9 GEORGE IL
Trial of John Pder^Zengeff
[71!
were giren, that eirer an Enfflishman heard of,
at least Id bis own country : 1 say, prosecutions
for libels since the time of that arbitrary court,
and until the glorious Revolution, hate gene-
ral ty been set on foot at the instance of the
croivn, or its ministers; and it is no small re*
proach to the law, that these prosecutions were
too ol^o and too much countenanced by the
judges, who held their places at pleasure (a
otsagreeable tenure to any officer, but a dan-
gerous one in the case ot a iudge). To say
Viore to this point may not be proper. And
yet 1 cannot think it unwarrantable, to shew
the unhappy influence that a sovereign has
■ometimes had, not only upon judges, but even
upon parliaments themselves.
It has already been shewn, how the judges
differed in their opinions about the nature of a
libel, in the case of the Seven Bishops. There
you see three judges of one opinion, that is, of
A wrong opinion, in the judgment of the best
men in England, and one judge of a right opi-
nion. How unhappy might it have l^en for
all of us at this day, if that jury had understoml
the words in that information as the Court didi*
Or if they had left it to the Court to judp^e,
whether the Petition of the Bishops was or was
not a libel ? No ! they took upon them « to tlieir
immortal honour, to determine both law and
fact, and to understand the Petition of the Bi-
flhops to be no libel, that is, to contain no false-
hood nor sedition, and therefore found them
Not Guilty. And remarkable is the case of sir
8amuel Barnardiston, who was fined 10,000/.
for writing a letter, in which, it may be said,
none saw any scandal or falsehood but the
Court and Jury ; for that judgment was after-
wards looked upon as a cruel and detestable
judgment, and therefore was reversed by par-
liament. Many more instances mi;r|it be jfiven
of the complaisance of court- judges uhout those
times, and before ; but 1 will mention only one
case more, and that is the ease of sir Eilward
Hales, who, though a lloman Catholic, was by
ways been such as to make precedenta of, but
the contrary ; and so it happened in this case,
where it was solemnly judged, That, notwitb'
standing this act of parliament, made in III
strongest terms, for preservation of the Prol«P
tant religion, that yet the king ^ had, by hi
royal prerogative, a power to dbpenw vitft
that law; and sir Edward Hales* ww ae*
quitted by the judges accordingly. So tbi
king's dispensing power being by the jndgii
set up above the act of parliament, thu law,
which the people looked upon as their chief is-
curity against Popery and arbitrary P(^*w,
was, by this judgment, rendered altogether in*
effectual. But this judgment is sufficientlv •»
posed by sir Robert Atkins, late one of tki
judges of the Court of Common Pleas, in hit
Enquiry into the King*s Power of Dispeniiig
with Penal Statutes ; wherein it u shewn, who
it was that first invented dispensations ; bse
they came into England ; what ill usehasbeei
made of them there ; and all this principally
owing to the countenance given them by tiw
j ndn^es. He says of the dispensing power, * The
Pope was the inventor of it ; our kings btrs
borrowed it from them ; and the judges bite,
from time to time, nursed and dressed it a|i,
and given it countenance ; and it is still upoi
the growth, and encroaching, till it has alMt
subverted all law, and made the regal powtr
absolute, if not dissolute.' This seems not oaly
to shew how far judges have been influenced
by power, and how little cases of this sort,
where the preroa:ative has been in questioB in
former reigns, are to be relied upon fur law : baft
I think it plainly shews too, that a man msy
use a greater freedom with the |>ower of bisio-
vereign, and the judges in Great Britain, tbio
■ it sccuis he may with the power of a govfraoi
i in the plantations, who is but a fellow- subject.
I Arc the words with which we are charged, like
these? Do Mr. /enger*s papers contain my
such freedoms with his governor, or his coua-
cil, as sir Robert Atkins has taken with there'
hmfx Jame^ i!, preferred to be u colonel of his ; gal power and tho jud<;esin Enirland ? And^i
army, no. witlistandin'^' the statute of 25 Ch. 3, i I never heard of any inrormation brought aj^o^
chap. 2, by which it is iirovidi'd. That every > him for these freedoms,
one that accepts of an omce, ci\ ii or mtlitnry, i If llieu, upon the whole, there is so great tr
&c. shall take tiie oalhs, suI)soribe the declara- j nneertaiuty among judges (icarne<l and ^[reai
tion, and take tiie saorainent, wittiin 3 months, ' men) in matters of this kind ; if power bai
&c. otherwise he is disabled to hold such office,
and the grant for tlio same to be nuil and vuid«
and the party to forfeit 500l. Sir Edvvard
Hales did not take the oattis or sacrament, and
was {irosecuted for the 500/. for exei cising the
ofiice of a colonel by the space of three mouths,
without conforming as in the act is directed.
Sir Edward pleads. That the king, by his let-
ters patent, did dispense with his taking the
oaths and sacrament, and subscribing the de-
claration, and had pardoned the forfeiture of
500/. And \«liether the king's disitensalion
was good, aifainst the said act of parliament.^
was the question. I shall m*ntinn no more of
this case, than to shew how in the reiifu of an
arbitrary prince, where judges hold their seats
At pknufuiei their Uctenninatifflii have not al-
had so great an influence on judges, how cau-
tious ought we t(» l>e in detcnuining by tbcii
judgments, especially in the plantations, tod
in the case of libels ? There is heresy in law as
well as in religion, and both hare changed very
much ; and we well know that it is nut two
ceuturies ago that a man would have been
burnt as an heretic, for owning such opinion!
in matters of reli;;ion as are publicly wrote ao^
printed at this day. They were fallible roeni
It seems, and ^ve take the lil»ertv not onlv tt
differ fnmi them in religious opinions, but ta
condemn them and their ojiinions too ; and I
must presume, that in taking these freedoms ia
thinkmg and spcakiitg about ni Titters of faith
w^
» fieehif Cttie, vol. 11, p. IIM.
risi
JwuUibd.
A. D. I7S5.
[714
ir ratipoa, «• tra io Ihe right : For, though |
t ii ovd there are very great liberties of tme
eiimI taken in New- York, yet I hate heard of
w inforaiaiion preferred by Blr. Altoroey for
ujr oifcncei of tbia sort. From which 1
hinlE it ia pretty clear, that in New- York a wan
ij naJBe very free with his God, but be must
'care whathesaysofhisgofemor.
j&ii. npPMd upon bv all men, that this ia a
10 "
^ of libeitr; and wbile men keep within
tti houiida or troth, 1 hope they may with
mt/Bg both apeak and writ*; their sentiments of
im oondiiet of men in power, I mean of that
■rtiof their conduct only, which affects the
Ibffity Qt property of the people under their
liainiBtratkm ; were this to be denied, then the
it0p may make them slaves. For what
JM can M entertained of slafery, bevond
af anfiering the greatest injuries and op-
Bona, without the liberty of complaining ;
if Chey do, to be destroyed, body and estate,
iraa doing.
. Itai aaid, and insisted upon bv Mr. Attorney :
Ihafc govemment is a sacred tnin^ ; that it is
llbe aiipporled and referenced ; it is govern -
■aat nat protects our persons and estates;
that ptttventa treasons, rounlers, rdiberies, riots,
and ail the train of evils tliat overturns king-
dsiM and atates, and ruins particular persons ;
and if those in the administration, especially
Iks attprema magistrates, must have all their
andnd oenauradhv private men, government
OBBOt aubsist. This is called a lir-entiousness
ait la be tolerated. It is said, that it brings
lbs ralera of the people into contempt, and thtir
Mbirity not to be regarded, and so in the end
Ihilaws cannot be put in execution. These, I
«][, and such as these, are the general topics
kined upon by men in power, and their ad-
lietfes. But I wish it mi^ht be considerpd at
the same time, how often it has happened, that
the abuse of power has been the primary cause
4f these evils, and that it was tbe injustice and
ippn'ision of these great men, which has com-
»broufi^t tbem into contempt with the
The craft and art of such men is
great, and who, that is the least acquainted
wiik history or law, can be ignorant of the
ipecious pretences, which have ofWn been
■ade nse of by men in power, to introduce arbi-
tary rule, and destroy the liberties of a free
peaple. I will g^if e two instances, and as they
Me authorises not to be denied, nor can be mis-
aaderstood, I presume they will be sufficient.
Tbe firat is the statute of 3d of Hen. 7, cap.
t.* Tbe preamble of tJie statute will prove all,
ind more than I have alleged, it begins:
'The king our sovereign lord retnemberetb, how
h^ onlawfbl maintenances, giving of liveries,
ppis and tokens, &c. untrue demeanings of
ifaeriffa in making of pannels, and other untrue
letnrna, by taking of money, by injuries, by
|vsat riota and unlawful asaemblies; tbe policy
•■d ^pood rule of this realm is almost sundued ;
tad tor tbe not punishing these inconveniencies,
■nd by occasion of the premisses, little or no-
thing may ba found by enquiry, &e. to the in-
crease of murders, 6cc. and uunureties of all men
living, and h^ses of their lands and goods.'
Here is a tine and specious pretence for iotro-
ducinff tbe remedy, as it is called, which is
ftrovided by this act ; that is, instead of being
awfully accused by twenty-four ;rQnd and law-
ful men of the neighbourhood, and ui'terwarda
tried by twelve like lawful men, here \% a power
given to the lord chancellor, lord treasurer, the
keeper of the king's privy seal, or two of them,
calhng to them a bishup, a temporal lord, and
other great men mentioned in the act, (who, it
is to be observed, were all to be dependants on
the court) to receive infurmatiun against any
penon for any of the misbehaviours recited in
that act, and by their discretion to examine,
and to punish tbem according to their demerit.
The second statute I proposed to meniion, ia
the 11th of the aame king, chap. Sd, the pre-
amble of which act has the like fair pretencea an
the former ; for the king calling to his re-
membrance the good laws made against the
receiving of liveries, &c. unlawful extortions^
maintenances, embracery, &c. unlawful games »
&c. and many other ^reat enormities, and of-
ten ces committe<l agamst many good atatuteSt
to the displeasure of Almighty God, which, the
act says, could not, nor yet can, be conve-
niently punished by tbe due order of the law,
except it were iiret found by twelve men, &c.
whicli, for tbe causes aforesaid, will not find
nor yet present the truth. And therefore the
same statute directs, that the justices of aasiase,
and justices uf the peace, bliall upon inforraa-
tiuu for the kiiiif l>efbre them made, have full
power, by their discretion, to hear and determine
all such offences. Here are two statutes that
are alloweil to hiive given the deepest wound to
tbe liberties of tbe people of England of anyr
that I remember to have been made, unlesa it
may be said that the statute made in the time
of Henrv 8tb, by which his prodamationa
were to have tbe effect of laws, might in ita
consequence be worse. And yet we see the
plausible prrtences found out by the great men
to procure these acts. And ii may justly be
said, that by those pretences the people of
England were cheated or awed into the deliver-
ing up tlieir ancient and sacred right of triala
by grand and petit juries. I hope to be excused
iw this expression, seeing my lord Coke calls
it (4 Insi ) ' unjust and atrange act, that tended
in its execntiun to tlie great displeasure of Al-
mighty God, and the utter subversion of the
common law.'
These, 1 think, make out what I alleged, and
are flagrant instances of the influence of men
in power, even upon the representatives of a
whole kingdom. From all which, I hope, it
will be agreeil, that it is a duty which all good
men owe to their country, to guard against the
unhappy influence of ill men when entrusted
with power, and especially against their
creatures and dependents, who, as they are
generally more necessitous, are surely more
covetous and cruel. But it is worthy of obser-
▼ntioo, that though the spirit of liberty w«f
fI5]
9 GEORGE IL
Trial of John Peter Zenger,
[716
borne down and oppressed in England that
time, yet it was not lost ; for tbe parliament
)aid hold of the first opportunity to free the
subject from the many msufferable oppressions
nnd outrages committed upon their persona and
estates by colour of these acts, the last of
which being deemed the most grie?ous, was
repealed in the first year of Hen. 8th. Though
it is to be obserfed, that Hen. 7th, and his
creatures, reaped such great adf antages by the
l^evons oppressions and exactions, grinding
the faces of the poor subjects, as my lord Coke
says, by colour of this statute by mformation
only, that a repeal of this act could neirer be
obtained duriiif^ tbe life of that prince. The
other statute b^ng the faFOurite law for sup-
porting arbitrary power, was continued much
longer. The execution of it was by the great
men of the realm ; and how they executal it,
the sense of tlio kingdom, expressed in tbe 7th
of Charles 1st, (by which the Court of Star-
Chamber, the soil where informations grew
rankest) will best declare. In that statute
Blagna Charta, and the other statutes made in
the time of Edw. 3, which, I think, are no
less than five, are particularly enumerated as
acts, by which the liberties and privileges of
the people of England were secured to Uiem,
ai^ainst such oppressive courts as the Star-
Ciiamber, and others of the like jurisdiction.
And the reason assigned for their pulling do\vu
the Star-Charaber, is, That the proceedings, cen*
sures and decrees of the Court of Star-Cham-
ber, ereu though the great men of the realm,
nay, and a bishop too (holy man) were judges,
bad by experience been found to be an intoler-
able burthen to the subject, and the means to
introduce au arbitrary power and government.
And therefore that court was taken away, with
all the other courts in that statute mentioned,
having like jurisdiction.
I do not mention this statute, as if by the
taking away the Court of Star-Chamber, the
remedy for many of the abuses or offences
censured tliere, was likewise taken away ; no,
I only intend by it to shew, that the neoplc of
England saw clearly tbe danger ol trusting
their liberties and properties to be tried, even
by the greatest men in the kingdom, without
the judgment of a jury of their equals. They .
bad felt the terrible effects of leaving it to the
judgment of these ^reni men to say what was
scandalous and seditious, false or ironical. And
if the parliament of England thought this
power of judging was too great to be trusted
with men of the first rank in the kingdom,
without the aid of a jury, how sacred soever
their characters might be, and therefore re-
stored to the people, tlieir original right of trial
by juries, I hope to ,be excused for insisting,
that by the juugment of a parliament, from
whence no appeal lies, the jury arc the proper
judges of what is false at least, if not of what is
scandalous and seditious. This is an autliority,
not to be denied, it is as plain as it is great,
and to say, that this act indeed did restore to
the people Uiab by: juries^ wbieh was not tbe
practice of (he Star-Chamber, but tbat it did
not give the jurors any new authority, or any
1 iglit to try matters oi law, I say this otgectiQa
will not avail ; for I must insist, that when
matter of law is complicated with matter W
fact, the jury hare a rij^ht to detennina bsA.
As for instance ; upon indictment for murfa',
the jury may, and almost constant! jr do, lake
upon them to judge whether tbe evidenoe wll
amount to murder or manslaughter, and find
accordingly ; and I must say, 1 canDOt sce^
why in our case the jury have not at leutis
good a right to say, whether our newe-iMptts
are a libel or no libel, as another jury has It
say, whether killing of a maa is murder er
manslaughter. The right of the jar3r to l«i
such a verdict as they in their comeinioeds
think is agreeable to their evidence, is sop"
ported by the authority of Bushel's ease,* n
Vaugban's Reports, page 135, beyond any
doubt For, in tbe argument of that case, tM
chief-justice who delivered the opinion of the
Court, lays it down for law : (Vaaghan's Rsp.
p. 150.) That in all geueral issues, e> upM
non. cul. in trespass, non tort, nul disseiao a
assize, &c. though it is matter of law, whetiwr
the defendant is a trespasser, a disseizer, kc
in the particular cases in issue, yet the jsry
find not (as in a special verdict) the fact it
every case, leaving the law to tbe Court ; bil
find for the plaintiff or defendant upon the
issue to be tried, wherein they resolve both law
and fact complicately. It appean by tbe same
case, that thoug[h the discreet and lawfnl as-
sistance of the judge, by way of advice to tbe
jury, may houseful, yet that advice or diredioa
ought always to be upon supposition, and not
positive and upon coercion. The reason given
in the same book is, (page 144, 147.) fieoune
the judge (as judge) cannot know what tbe
evidence is which tbe jury have, that is, he
can only know the evidence given in court ;
but the evidence which the jury have, may be
of their own knowledge, as they are. returned
of the neighbourhood. They may also kno«
from their own knowledge^ t'lat what is sworn
ill court is not true ; and they may know th(
witnesses to be stigmatized, to which the Cour
may be strangers. But what is to my purpose
is, that suppose that the Court did really knoi
all the evidence which the jury know, yet ii
that case it is agreed. That the judge and jur}
may differ in the result of their evidence, ai
well as two judges may, which often happeni
And iu page 148, thejudge subjoins the reason
why it is no crime for a jury to differ in opi
nion from the Court, where he says. That i
man cannot see with auother's eye, nor hea
by another's ear ; no more can a man conclnd
or inter the thing by another's understandiii)
or reasoning. From all which (1 insist) it i
very plain, that the jury are by law at libert;
(without any affront to the judgment of th
Court) to find both the law and the fact, in oa
case, as they did in the case I am speaking lo
« See it, vol. 6, p. 999.
717]
for a Libel.
irhicii I « in bnf leave jimt to ineiitinn, »nA It
WW tbii; Mr. I'enii auil Urnil being Quakfr^,
«ad liaviti^ met in a peaccnLile manner, ufier
b«Dg itiiit out Of their luceliDg- house, preaclt-
■d in Gnce-Cburrh-ttieet in London, tci tlie
|)M)|ria of their own persuauon, and for this ilicy
«H« indicted ; and it ivas said, Tbitthey »iiii
Mhcr penona,totiie number of 300, nnlaiTt'iilly
mt tumultiioufly asiemhled, lo ibe disturbjuici:
if tka peace, &c. To trbich they plenileil,
KMGuitly, Aod t]ie |ietll jnry being sworn to
kf Iha iHue betneen (be kio^ aiid the pri-
■va, tbat ia, nlietlier Ihey nere guilty, ao-
Mriingto tbe tnrni of the indictment? Ilc'i'
Arc waa no dispiilcbut they were assen.MLl
k|itber, to tbe number mentioned in tbr' m-
Aelnent; bol,. whether that mcetintf log^il)!-!
na tmUiiuIt, tumulliiouiiy, anil to the ills-
MtiMofuie peace? wai ihe queallon. Ami
thaConrt lold ine juiy itnaa, and ordered ilif.-
fBJtoftBditaot for (Mid tbe Court) the med-
al ma ifae matter of tact, and that ia con Icss-
tC*Ml we tell you it is unlawful, tnr it i^
■piMt the atatute ; and the meeting bebfrun-
kml, it followB of course tbat it was tumul-
feNi,iiMllothediatuitHuiceoflhepeac«. But
Ai jwy dkl not tbink fit to take tho Court's
Mi for it, fbr ibey could neither find not, In-
■A,oraDy thing; lending to the lH«ach of ihe
|Ma contnitied at that meeting ; and tbey
MfriHed Blr. Peon and Mead.* In doing uf
■heb they took upon them to judge both tlie
haudtbabcl; at which the Court (being
■biaiilies true courtiers) were so mnch of-
AtMtlkat they fined the Jury 40 mirks a-
eitandGoaimitted Ibem till paid. Uul Mr.
M, who lalued tbe right of a juryman anil
tkKbnly of hii country more than bis nwn,
itliiid lo pay the Ane, and waa resoUcil
(ilMagb at a ^reat expence and trouble Ion)
|*trJiV, and did bring, his Habeas Corpus, ti)
Hldidcd from hii line and imprisonment, and
ke wis released accordingly ; and this bt-ing
Ik judgment in biacase, it iaestabliKhed fur
^•, T^the judges, how grent soever they
h, baieno right to tine, imiirison, or punish a
jfj, for not nndiog a *erdict according tu the
wdiuo (rf* tbe Court. And tbi«, I bope, is
■*|fieient to prove, that jurymen are to see
■ilfc their own eyes, to bear with their oirn
(■XiUd lo make Uke of their own couacienrt-!^
{■twdentanding* in judging of tbe lires, li-
' ■" heir fellow subjects. Anil
Ibing which a mau writes, may, with the help
■soflheii
el low subjects.
•• ' Mve oone with this point.
Tlis ialbeaeeond information, for libelling
*UnTenior, tbat 1 haie known in Aracricn.
Wue first, Ihough it may look like t rn-
■Mm^ ftX, as it is true, 1 will beg leare (o
■■lisiit. Governor Nicholson, who happen-
*lMbe,oAeiuled with one of his clergy, mM
■W tat day upon Iberoad; and aa it «:>!•
^■1 with him (under Ibe protecliou of liJi
■Maiawop) used (be poor panwn with thr
^t of kutguage, threatened to cut off hia
**iilit his now, and at last to sbou liim
'n^ (he head. The pifwin, being a rcfe-
* 8m tba Cote, tol. c, p. {»;i.
I719
iiity lo fly for it ; and coming to a neiglibour'l
bouse, tielt himself rery ill of a ferer, and itn-
niediately writes for a doctor ; and that his
phyiiclsn might be the better judge of his dia>
temper, he acquainteil him with the usage be
had received ; concluding, that tbe governor
was certainly mad ; for that no man in bk
nenies would have behaved in that manner.
Thedoctor unhappily shews tbe parann's letter:
The goveruor came to hear of it, anil so an in-
lorraation was preferred against the poor man
lor saying. He believed Ihe governor woa mad ;
and it was laid in the information to he falie,
scandalous and wicked, end wrote with in-
tent to move sedition among the people, and
bring his excellency into contempt. But by
an order from the late ijneen Anne, there wm
a slop putto Ihe prosecution, with sundry others
set on Toothy the same governor against gen-
tlemen of the greatest north and honour ia tbat
govemmmt.
And mav not I he allowed, after all thii, to
of that useful term of art called an innuendo,
be construed to be a libel, according to Mr. At-
torney's definition of it, that whether tbe words
are spoke of a person of a public character, or
of a jirivale man, whether ilead or living, gooil
or bad, true or false, all make a libel ; Tor ac-
cording ta Mr. Attorney, after a man hears k
writing read, or reads and repeats it, or laughi
at it, (boy ore all puuisbable. ft is (ran, Mr.
Attorney is so good as to allow, atler tbe party-
knows it to be a libel ; but be is not so kiud ai
to lake tbe man's word for it.
[Here were several cases nut to shew, that
though what a man writes of a governor waa
true, proper, and necessary, yet, according to
tbe foregoing doctriue, it might be conslrnetl lo
be a IjImI. But Mr. Hamilton, after the trial
was over, being informed, that some of tbit
cases he had put had really happened in this
government, he declared he bad never heard of
any such ; and as he meant no personal reflec-
tions, he was sorry he bad menlioned them,
and therefore they are omitted here.]
Mr. Biun4/(on. If a libeljs understood in tha
rge and unli
torney, there is
may not be called a libel, or scarce any peraoa
sale from being called to account as a libdler ;
fur Moses, meek as he was, libelled Caiu ; and
who is it that baa not libelled the Devil 1 For,
according lo Mr. Atliirney, it is nojusliGcalion
to say one has a bad name. Echard boa li-
belled our good king William ; Burnet has li-
belled, among many others, king Charles and
king Jamei ; ami Itapin has libelled them all.
How musl a man speak or write, or what must
he bear, read, or sing t Ur when must ha
laiigb, ao as to be secure from being taken up
aa a libeller? I sincerely believe, that were
•Mue pennna to go through the streets of New
York, Dsw-a-days, and tetid a part aT Ilia
IIU]
9 GEORGE II.
Trial of John Peter Zenger,
[780
* Bible, if it was not known to be iugIi, Mr. At*
toroey, with the help of his iunuendos, would
easily turn it into a libel. As for instance,
Is. XI. 16. *< The leaders of the people caase
* them to err, and they that are led by them are
destroyed.** But shoald Mr. Attorney go
ilbout to make this a libel, he would read it
thus : * The leaders of the people* [innuendo,
the governor and council of New- York] * cause
< them' [innuendo, the people of this prorinee]
* to err, and they' [the governor and council
meaning] ' are destroyed* (^innuendo, are de-
ceived into the loss of their hberty] ; which is
the worst kind of destruction. Or if some
persons shonM publicly repeat, in a manner
not pleasing to his betters, the lOtli and the
llfh verses of the 56th chap, of the same book,
there Mr. Attorney would nave a large field to
display his skill, in the artful application of his
innnendos. The words are ; * His watchmen
* are blind, they are ignorant, &c. Yea, they
* are greedy dogs, that can never have enough.'
But to make them a libel, there is, according
to Mr. Attorney's doctrine, no more wanting
but the aid of his skill, in the right adapting
his ionuendos. As for instance ; * His watch-
* men* [innuendo, the governor's council and
assembly] ^ are blind, thoy are ignorant,'
[iunueotlo, will not see the ilangerouN designs
of his excellency.] * Yea, they' [the go-
vernor and council meaning] ' are greedy
* doffs, which can never have enough' [innu-
' endo, enough of rirhrsand power.] Such an
instance as this seems only fit to be laughed
at; but I tnay appeal to Mr. Attorney him-
ielf, whether these are not at least equally
proper to be applied to his exccllcDcy, and his
mioistcrs, as suine of the inferences and innn-
endos in his iiiforinatiou against my client.
Then if Mr. Altoruey is at liberty to come into
court, and file an inrorniation in the kind's
name, without leave, ^vho is secure, whom he
is pleased to prosecute as a libeller ? And as
the crown law is contended fur in bad times,
there is no remedy for the greatest oppression
of this sort, even thouij^h tlie parly prosecuted
is acquitted with honour. And give me leave
to say, as great men as any in Britain have
boldl)r asserted, that the mude of prosecuting
by information (when a {;rand jury will not
ftnd Billa tera) is a national grievance, an<l
ffreatly inconsistent with that freedom which
the siib|ects of England enjoy in most other
ttttes. But if wc are so unhappy as not to be
able to ward off this stroke ot power directly,
let us take care not to be cheated out of our
lAiefties by forms and appearances ; let us
Always be stfre that the charge in the infor-
mation is made out clearly, even beyond a
doubt ; for though matters m the information
may be called form upon trial, yet they may
be, and Often have been found to be, matters
df substance upon givhig judgment.
Ctentiemen, the danger is great, in propor-
fioo to ttie miMshief that may happen flrrough
oor too great credulity. A proper coofiiience
in a ooiirt is commewnMe ; bat as the verdict
{iH/ktmet hu) wiH b9 yo«i| joq ongM to
refer no part of your doty to the discretion of
other persons. If jou should be of opinion,
that there is no falsehood in Mr. Zenger's
papers, yoa will, nay, (pardon me for the «■•
pression) you ought to say so ; beonise jm
don't know whether others (I mean the Coat)
may be of that opinion. It is yomr right m^
so, and there is much depending npon yav
resolution, as well as upon your integrity.
The loss of liberty, to a generoos Dnnd, ii
worse than death ; and yet we know tbnc
have been those in all ages, who, for the aafti
of preferment, or some imaginary hon«or, hns
freely lent a helping hand to oppress, nay, li
destroy their country. This bringi to ay
mind that saying of the immortu Bratai^
when he looked upon tlie creatures of Canr,
who were very great men, but by no niMn
good men : *• Yon Romans," aaid BroM^
** if vet I may call yon so, consider what j[Si
are doing ; i^member that you are asriniif
Cesar to fbrge those very chains,- which om
day he wilt make yourselves wear." Thii ii
what every man (that values freedom) oagbl
to consider : he should act by judgment, im
not by affection or self-interest; for irfcm
those prevail, no ties of either country or kin-
dred are regarded ; as upon the oilier bui,
the roan who loves his country^ pvefcts Ik
liberty to all other considerations, well kaiv-
ing that without liberty Kfe is a misery.
A famous instance of this yon will find ia till
history of another brave Itoman, of the mk
name ; 1 mean Lucius Junius Bruins, hIsk
story is well known ; aud'^ therefore i Ml
mention no more of it, than only to shew the
value he put upon the freedom ot his connlrj.
A(\er this great man, with his fellow-dtiiesit
whom he had engaged in the cause, bad
banished Tarquin the Proud, the last kkig of
Rome, from a throne which be ascended bjr
inhuman murders, and possessed bytheONit
dreadful tyranny and proscriptions, and bail fejf
this means amassed incredible riches, efco
sufficient to bribe to his interest many of Ike
young nobility of Rome, to assist bim in le-
coveritig the crown ; but the plot being dii-
covered, the principal conspirators wers af-
prehendcil, among whom were tworof theiM
of Junius Brutus. It was absolutely nccemiy
thai some should be made examples of, to ddtf
others f!-om attempting the restoring of Tv-
quin, and destroying the liberty of Roafft
And to effect this it was, that Lncivs Joniil
Brutu9, one of the consuls of Rome, ia Ike
presence of the Roman people, sat judge, ail
condemned his ow n sons, as traitors to their
country : and to give the last proof of hiscfr
sited virtue, and his love of liberty, be with ■
firmness of mind, (only becoming so great t
man) caused their heads to be struck off ii
his own presence ; and when he obseiredthA
his rigid virtue occasioned a sort of horMt
among the people, it is observed he only sail:
*' My fellow eitiiens, do not think that tUI
proceeds from any want of natural atrecdan:
No, the death of the sons of Brutus can afftcl
Bratuioolys bM the Ion of Ubeity wiU aflM
fir a LibeL
mtry.*' Thm highly wa9 liberty et-
in ibose days, that a father could ta-
lis sons to save his country. But why
t to heathen Rome, to brings instances
ore of liberty ? The best blood in Bri-
beeu shed in the cause of liberty ; and
doin we enjoy at this d»y, may be sai<l
1 a fip^at raeasuro) owin^ to the ^lo-
and the famous Hampden, and others
cx>untrymen, in the Csse of Ship-
* made ncrainst the arbitrary demands,
gfal impositions, of the times in which
pfl ; who, rather tiian ^ve up the rights
lishmcn, and submit to pay an illegal
0 more, I think, than three fshiltings,
to undery^o, and, for the liberty of
nntry, did nnderg^o the cfrritest extre-
n that arbitrary and ternble court of
lamber ; to whose arbitrary proceeding's
f composed of the principal men of the
md calculated to support arbitrary go-
at) no boun:]s or limits could be set,
id any other band remorc the evil but a
ent.
V may justly be compared to a great
vhile kept within its due buunils, it is
autiful and useful ; but wheu it over-
1 banks, it is then too impetti«u<) to be
d ; it bears down alt belore it, and brings
ion and desolation m hcrcver il comes.
this is the nature of power, let us at
our dnty, and like w!<e men (who va-
nlom) use our utmost care to support
the only bulwark against lawless power,
in all ages, has sacriticed to its wild
il boundless afiibition, the blood of the
n that ever lived.
e to be pardoned, Sir, for my zsnl upnn
sasion: it is nn oM and wise caution,
when ourtiei^iiboiir's tinusc is on fire,
It to take care of niir own." For tliougli,
be God, 1 lire in a government where
9 well anderstomi, and frrely enjoyed ;
srience has shewn us all (I'm sure it
oe), that a bad precedent in one govem-
I sii«m set up for an authority in ano-
nd therefore I cannot but think it mine,
ry honest man's duty, that (while we
due obedience to men in authority) we
t the same time to be upon our guard
power, wherever we apprehend that it
ici ourselves or our fellow- subjects.
truly very unequal to such an under-
on maliy acc-unts. And yon see I la-
der the weight ef many years, and am
»WB with great intirmitiesof body ; yet
weak as 1 am, 1 sliould think it my
required, to go to the utmost part of
I, where my service could be of any
mifltine to quench the flame of proae-
«pon inibrmations, set on foot by the
nent, to deprive a people of the right of
ratipg^ (and complaining too) of the
f Mtlempts of men m power. Men who
B^oppresfthe people under their ad-
I 'i^m Ilia GoUwlioD, vol. 3, p. 82C.
'^ XVII.
A. D. 17S^.
[TM
ministration, |iroroke tbem to cry out and caa^
plaiu ; and then make that very complaint th«
tbuDdiatkm for new oppressions and prosecu*
tiorfiB. I wish 1 could say there were no in-
stances of this kind. But to conclude ; the
question before the Court, and you, gentlemen
of the jury, is not of small nor private concern (
it is not the cause of a poor printer, nor of New
York akme, which yon are now trying : No I
It may, iu its consequence, affect every free-
man that lives nnder a British government on
the main of America. It is tl)e best cause ; it
is the cause of liberty ; and I make no donbt
but yonr upright conduct, this day, will not
only*eniitle you to the love and esteem of your
fellow-citizens; but every man, who prefer*
freedom to a life of slarery, will bless and ho«
nour you, as moo who have baffled the attempt
of tymnuy ; and, by an impartial and uncer*
rupt verdict, have laid a noble foondation for
securing to ourselves, our posterity, and onr
neighbours, that to which nature and the laws
of our country have given us a right — ^the li-
berty— both of exposing and opposing arbitral y
power (in these parts of the world, at least) by
speaking and wrillog trutli.
Here Mr. Attorney observed, that Mr. Ha*
railton had gone very much out of the way^
and had made himself and the people rery
merry ; but that he had been citing cases no|
at all io the purpose. He said, tliere waa o^
such cause as Mr. Bushel's, or sir Edwarf
Hale's, before the Court; and he could pot
tind out vrhat the Court or Jury had to do witU
dispensations, riots, or unlawful assemblies t
all that the jury had to consider of, was Mr.
Zenker's printing and publishing two scanda-
lous libels, uhich v«ry highly rtflected on hb
excellency, and the principal men concerned
in the administration of this government, whicb
is confessed ; that is, the printing and poblisb-
iog of the Journals set forth in the information
is confessed. And concluded, that as Mr.
Hamilton had confessed the printing, and therf
could be no' douht hut they were scandalous
|)apers, highly rcllecting upou his excellerqy,
and the principal magistrates in the province ;
and therefore he ntade no doubt but the jurj
would find tlie defendant guilty, and would re-
fer to the Court for their direction.
Mr. ChirJ' Justice. Gentlemen of the jury,
the great pains Mr. Hamilton has taken to shew
how little regard juries are to pay to the opinion
of thejudges, and his insisting so muah upon the
conductor some judges in trials of this Icind, is
done, no doubt, with a design that you should
take but very Utile notice ol' what I may say
upon this occasion. I shall thcreiore only ol^
serve to you, Uiat, as the facts or words in thn
inlbrmatioo are confessed, tbe only thing that
can come in question before yon is, wbe|her
the words, as set foiith in the information, make
a libel ; and that is a matter of law, no doubt,
and which you may leave to the Court. But
I shall trouble you no further with any thinr
more of my own ; but read to ^ou the wonw
of a learned and u|>rigbtjadge, ra a csKof the
9A
ns]
90E0BGE n.
tilw nature. [Lord Chief Jiutiea Holt, in .
Tulcliin'a Com.*] I
" To soy that corrD[it officen are appointed '
to adminiiter afTaira, ia certainly a reflectian od
the go*eniroeiit. If people abODld not be called
to accouut Ibr poaaeaiing the people wiib an ill
opinioa of the EOTernmeDt, no goTeranimt can
•ubiiat ; for it u necesaary for ul goTemnienta
that the peo|i1e abouM have a good ojanion of
it i and nothing oan be worae to any gorern-
mentftfaan"
Aa to the
ZVmI tfjokn PiUr Benger,
dennan Fell, be i
draiqht thereof.
[784
to proCDte anil
of It, ibia haa
wayi looked upon aa a crime, and DO goi
meat can be aafe without it be puniabao."
Now you are to coosidfr, whetber these
vorda I Gate read to yon do not lend to beget
' an ill opinioa of ifaoaorainittration of the go-
Terameni; to tell ut, that thoae that ate
employed knoi* nolbing of the matter, and
Ihoae that du know are not -employed. Hen
are notadapied to ofGeea, but officea to men,
out of a particular regard to their intereet, and
not to their fitueM foi tbe places. Tbia ia the
purport of iliese papera .
Hr. Hamilton. IhumUy beg year boBuor'a
pardoD ; 1 am very much misapprebended, if
you auppoae n-hat I aaid waa ao designed.
Sir, you know 1 made an apology for the
freedom I fbnnd myaelf under a necesaity of
oaing npoo ihia occawoo, I taid, there waa
Kothing personal dengned ; it arose from the
Mlure of oar defence.
The Juiy withdrew, and in a amall lime re-
lumed ; and being aakcd by the clerk,
WtiMher iber were agreed of their lerdiel,
and whether Jonn Peter Zenger was Guilty of
prioting and publiahii^ the libels in the inlbr-
Thcy answered, by Thomas Hunt, their
Ibreman, Not Guilty.
Upon which there were three bozEO* in the
Ball, which was crowded with people; and
the next day I wai diieba^ed from my im.
prison ment,
Cily of New York, a.
A} a Common Council, held at tbe City-liall
of the aaiil city, on TueiNlay llie leth
day of Senteraher, *. d. 1T35.— Pruknt,
Paul Ricbardi, tiq. Mayor; Gerardui
Stuyvesant, esq. Deputy Mayor ; Daniel
Ilorsemandeu, esq. fieeorder — Aldcrmtii,
William Roome, caq. Simon Johnioo, esq.
John Walter, e«q. Christopher Fell, esq.
Wephen Bayard, esq. Johannes Burger,
esq.— jiHuluiilt, Mr. JohaiiiiM Waldrou,
Hr. Ede Itlyer, Mr. John Moore, BIr.
John Fred, >Ir. Chstks Le Koux, Mr.
Urert Byfaok.
Ofdered, That Andrew Hamillon, esq. of
with ibeFreedom of this Corpotation : and that
■Idwman Bayard, aMscinan J^sssa, aad al-
City of New York, u.
t a Common Council, held at tba City-hal
of the said dty, on Monday the SIWI day
of September, being tba teaaiday of A
Michael the Archangel, a. d. tTSS.—
PnEaEXT, Paul Richarda, eaq. Mayor;
DBDielUarsemaDden,eiq. Recorder^— AL
dermtm, William Roome, eaq. Smoa
Johnson, eaq. John Waltrr, esq. Ghm*
touher Fell, esq. Stephen Bayard, Mf,
Joliaunea Burger, eiq. — Auitlm^tf, Mr.
Johanoes Watdron, Mr. John Fred, Br.
Charlea le Roux, Mr. Evert Byml^
Mr. Henry BogerL
Stephen Bayard, Smon Jofanacn, asd Cbrii-
topber Fell, eaqis. aldermen, UwbonilwM
rderred to prepare the drmngbt of the FicedM
Hamillon, esq. make tbe Heport tbereon in lit
words following, (to wit) That Ibey hare ar^
pared tbe form of the grant to the anid AnAcv
Hamilton, esq. of the Freedom of the dij •(
New York, in then worda, (to wit)
" cay of New York. n.
Paul Richarda, esq. the Reoonler. AU«r-
men, and AsaiatanU of the rity of Now York, eon-
renHlinCoamoDCanndlttoall towbontbcaa
preseolaahallcunie greeting. Whereas booMir
la the'Just reward (^virtue, and public benrfis
demand a puUic acknowledgment : Wetboe-
fure, uniler a grateful sense of tbe remarkaUr
service dime to tlie iohahitanta of this eily tad
L-okmy by Andrew Hamilton, eaq. of Pennifl-
fsoia, haiTiiler at law, by his learned ini
genemus defence of the rights of maakiad, iiid
5ie liberty of llie press, in tbe caseofJoha
Peter Z('iit!:«r, lalelv Iried on an iofilRiialiai
exhibiteil in liie augirrme court of this coIobj,
do, by the$e presents, bear to the said Andrvr
'lamiltou, esq. the public thanka of the free-
len of this Corporation for that aignal acrtice,
hich Jie cheerfully uodertnok nndcr great
indispoMiianofbody,aodgenerDualyperfi)naad,
refusing su y fee or- reward : and in teatinaoj
of our 1,'reat esteem for Ilia person, and seniesf
hia meril, dn hereby present him with tlw
Freedom of this Corporation. These are tbve-
fare to certify and declare, that the eald la-
drew H^iuiiltun, eaq. is hereby admitted, la-
ceiieiJ, and allowed a freeman and citisaa if
the said city : to hare, hold, eqjoy, and paitab
of all the beoefiu, liberiies, pririWgca, freedaai
and immuuiiiea wbatsoerer, granted or bekMf
ing to a ireemaD and citizen of tbe aaRMcityi
In testimony whereof, tlie Comnoa Cooidl
uf tbe said cKy, in Common Council ifr
setobled, bare caused the seal of Ibe ssad alf
*~ ^ bacunto aKixed, ibia SWh day of Si^
r, 4. D. 1T3S. By otdOT of 6m Ow
Jii^ % Liitl,
" And we (to furtliFr report, thai ■unilry of
theiii«nb«ra nflbis coi-jMnitiun, anil (TeDllvmeD
of UiH dly, hare ralunlarily conlriliuled sulfi'
«i«ot Tot ■ gald-box or tife ounrrs nnJ » hall',
for inctotingllieiolulllii-iBiil I'renlnni-, Itpnn
IIm IhI of which, we lire nf opjninn, should be
mgnwtd ihc arms nf the city of New-York.
Www our hnndt thU S9lh day of 8fpl. 173».
t^EPIJEN UaVIID.
StKoN Johnson.
Chbiitophkn Fell.'
■ikR*poni>ia|tpmTe<l by this Court, and
I.Thalihe Frredum antf Box be forthwith
inl lo lh« said Rrporl ; anil that
the oommon clerk of ihii city, do
•«a] nf ibe same Frecdoui, ond inclow
Mid Box.
LAUerman B*y»rdgoiD(!toFbila<]elpliia,
femna; to be the beaivr, ut the said Free-
rlo Mr. Hamillon ; Ordered, That Mr.
a drlifer it to Aidrmian Bayard for that
, . r : and ihal Alderman Bayard do deliver
a I* 3lr. HamiltoD, with aisuraiices of the
_ |nU esteem (hat thia corporalion have for hia
L imaiMidiBeriL
ft CUy of New York, u.
W UlComnen Council, hold attheCily hall of
4 lh« aud city, on Wedneaday the 15ih <]ay
J of October, «. d. 1735.— Haas ent, Paul
i Itiobarda, caih lHayor; Danial Hone-
i BudettiCU). Hecotaet.— Aldermen. John
^ Watler, esq. Simon Johnaon, esq. William
■ Hoome, eaii. JoliBiines Burger, eiq. — As-
auKanfi, Mr. Johaonea Waldron, Mr.
IAbnham Do Peyater, Mr. Gerardus Beek-
naOiHt. Peter btuuteoburKh, Mr. Henry
Boprt.
OMarad.' That the Freetlom eraoted hy this
WMration to Andrew IlamiTton, eaq. with
At iteport of the CommiKee for preparing a
fangblol the same, and the order of thiacourt
■moD, may be printed. Wm. Shupis.
Boand on (he lid of the box, mentioned in the
iteliJiid Report and Order, there ore engraved
W Wily the arm* of the city of New York,
ha alao ibis motto in a ^rter ; " Demersa;
t^U timefacta Libertas—bicc tandem emer-
fMI."
On the inner side of the lid of the box, shew-
i«ilMlfai Hie aame time with Hie certificate
■lb* frveriam, there are -en^aieo, in a flying
prHr.tliMe worda; '-Non nammii, Virtute
If Iha tiiB of the aaiJ box, there ia engn
Ct of Tolly'* winh ; ■■ It* cuique ereniat, ut
MfMk* meruit."
Wiiidi Freedom and Box were presented in
kMnacr llul had been d irected , an d gralefii I ly
IMftad by tb« said Andrew Hamilton, esq.*
A. D. 1791.
REMARKS
Oh thr Trial op JOHN PETER 2EN-
GER, pRiNTBB^F THE NEW YORK
WEEKLY JOURNAL, who wa*
LATELY TRIED AND ACaulTTCD, FOB
PRINTINO AND PUBLISHIHO TWO Ll-
BELi AOAINST THB GoVEdNUENT OP
THAT i'ROVINCE.t
Sir ; It bas been a common remark among
those who have observed upon the capricious
dispeuMiioDi of fortune, that great events arc
Eers, ice. by The Father of Candour ;" which
as been ascribed to Lord CbaDCcllnr Camden,
and also lo Lord Ashbiirloo, it is noticed ihat the
Prehce to Zenker's Trial coulaini niSDy things
very well wonli reading.
t " These fteroarks were written by (wo
eminent lawyers in one of our colonies io
America, immediately after the publication of
the Trial of Mr. Zeuger, which it seems had
been industrionsly spread over that part of th*
world, before It reaclied England.
" As ihe doctrines canlaio''d in that (rial, or
rallier in the speech of Mr. Hamilton, are of
so new a cast, and su absolutely coatrBdlctory
lo all the resolutions and judgments ihnt have
been settled and eilablished lor so many ages,
and by Judp^es of the hi^hekl rejiutntioa, and
luost unquestionable characters, fur iheir in-
tegrity, virtues and abilities, it conid nol be
imagined so wild and idle an harangue could
have had any weight, or have met with anv
reception here, where the laws relating lo libew
haie been so oftf n cauvassed, and are generally
BO well understooit ; and therefore the person
to whom Ihcw Remarks were seni, never
thought of making any oilier use of them than
to satisly his own curiosity, and tliat of hit
Bui seeing, lo his great surprize, thai Ihii
extraordinary declamation ba>i been mentioned
with an air uf applause and triumph in several
news-papers, as striking out some new lights
with regard to Ihe doctrine of libels ; and, u|>ua
(lie credit of that recommendation, the wbolo
Trial not only Iwice printed here, but retailed
the public news-papers, whereby
many well meaning people may be deceived;
and led into wrong noDons concerning ths
taws of their country in this point: lie ha*
(bought Bt to comraunicaie these Kemarks to
tbie public, in order to remove any mistakes or
ors that persons may fall iuto for want of
adequate judgment in these malters ; and
tbe rather, because if aucb false opiniona
abould happen to influence the conduct or
practice of any, (be cunsequencea may be very
dangerous; it being an established maxim in
outlaw, that neither ignorance nor miaiako ia
an excuse to any one who bas broke it. from
tbe penally of it." Pr«fac« to ibe Remarks.
-WTJ
9 GEORGE: II.
TruJ qfJoktt Ptftr Zengeri
t7f»
often produced by instruments that are not 1 1 rain iteh of writing ; for thflre are m>
aeemiu((ly adequate; 'na^9 tbattbe same ap-
parent causes ba?e quite contrary effects ; and
the road that leads one man td wealth, honour,
and power, sometimes oarrin another Co so-
TertY, intamy, and ruin. Hence cooiea Uiat
cbunised distribution of axes and coronets,
JMlters and ribbons, trbicb' history ifisptays by
numerous slioeking examples ; .aiid thus it is,
that f|ite seems to play at cross- purposes with
nrankind; or to speak in Scripture -phrase, in
this sense as well as many others, " the wisdom
of this world is foolishness."
' I find myseU' drawn into these gmft reflec-
tions, by readings the Trial of John Peter
Zeogrer; at New- York, apon an inlbrmation for
printing and publishing a libel. This piece,
if seems, has been lately printed there, and was
put into my hand the other day by a friend,
who has both a general acquaintance and a
correspondence with the northern colonies, as
a rare production, containing many tilings new
and surprising. And, in truth, I most say it
affords a lively specimen, in miniature, of the
justness of the foregoing remarks : I mean that
part of it which is attributed to Andrew
Hamilton, esq. of Philadelphia, barrister at
law ; together with the sequel, describing the
munificent behaviour of the citizens, in com-
nion council assembled, to the learned gen-
tleman, for his singular ^lertbrmance ou that
occasion.
I must at the same time assure you, that if
^{ieoger's trial had been printed by order of the
Court that trie<l him, or from a copy taken by
a private hand ut the trial, or by any other
means tliut excluilod Mr. iiamiltou^s approba-
tion or privily, J should liavc rnjiiyed luy own
opinion without troubling aou or any body else
about it, aud had the churit y tu vrsolve all tlic
extra vaji^aueies that occur turouifhout his de-
clauiatiou, into a ri^^hl (liscerunicnt of the
people he talked to, and a dexterity in capli-
vatint;^ them, which had its effect in the ac-
quittal (it* his client. Hut when a gentleman
9f the bar takes the pains to write over a loni^
discourse (he being the only lawyer, of either
aide, who ^ave the printer his notes), in order
to send ii abroa^l through the world, as a speci-
men of his abilities, sentiments and princiiiles ;
as a solemn argument in the law, fiL to see the
light, aud abide the test in all places ; and,
above all, as a task of duty, which he thought
himself hound to perfbrni, even by going to
the utmost parts of the laud for the purpose ;
and all this, without lee or reward, under the
weight of many years, and great infn inities of
hotly : When a barrister, 1 say, thus becomes
a volunteer for e;-ror, and piesuiiius to obtrude
bad law and false reasoning upon the sense of
mankind, because th^ s;tgir magistrates of
New- York huve put their seal toil; 1 think
myself at liberty, wikhout using any other
apology, to exercise the judging privilege of a
reader, since the ^cutleman himself has put
luc into the possession of it.
lu doing ihia-, I sUall not in the least graiily
ordinary talents necessary for lefntisg
absurdities ; but I shall have the hoBMt meril
of endea? ouring to undeceif e aoch of mv felWw-
subjects in the plantations as may, irom tha
late uncommon success of the doctrine, mistake
the liberty of the press for a lieence to write
and publish mfamous thuigs of their mjierion^
and of all others, at their pleasure, profidad
they write and publish nothing but what is
true. In the next place, I would preserre, as
far as I am able, the dignity of the professkia el
the law in these remote parts of the British is-
minions ; and prevent its learned piofeMoia in
England, who probably will see the renowMd
piece above mentioned (if we may judge fnm
the industry used in dispersing it), from aw*
peeling that all their American brethren «i
the like arts to gain popularity and honouraWi
rewards. The former, having the advaiitqpB
of going daily to tlie great school of laW at
Wtstminster, are already apt cnoiigh to tldiik
meanly of the accomnlisliments oi the latter.
who are iar removed from iostraction^ loi
their opinion must be strongly confirmed u ihii
respect, if such a rhapsoify, aa was ottered II
New- Vork, should not only be applauded Mil
rewarded publicly there, hut printed and sosl*
terediu reams through the other colonies, with*
out being folbwed by a suitable animeiiffinioa
Neither will it be amiss to take aoma MCioe,
in this place, of the quackery of the phJisiise
in general, without any particular aipplioatuoy
as it has been practised with vast luooess ia
some of our colonies. Voo will often see (if
common fame may be trusted) a self'Sufficieot
enter[trising lawyer, comikoundeil of soiuetliiui;
bet wot- n a politician and a broker, who,makinj^
the foibics of the inhaliitants his capital study,
and withal takinsf advantajj^v? of the \f^eskn«i
of his judges, the ignorance of some of bis
brethren, the nuxlosty of others, and the hoDCtt
scruples Of a third soit (without having any of
his own), becomes iu<iensibly an oracle in the
courts, and aripiiros by degrees a kind of do-
minion over the minds, as well as the estates of
the people; an influence never to be obtained
but by the help of qualities very differeoi frooi
learning and integrity. Wheuever such a raso
is ftMuid, the wonder is not great, if, from t
long habit of advancing what be pleases, sihI
having it received for law, he comes in time to
fancy that what he pleases to advance is resllf
law.
I have taken the pains, during this short va-
cation between our monthly courts, candidly Id
examine this new systciu of libels lately cow*
posed and propagated on the continent; tbi
discovery of which cost the good city of New<
York five ounces and a half of ^old,a scrip o
parchment, aud three Latin sentences. My in
tentiou is to consider things, not persott
having no other knowledge of the gentlema
principally concerned, than what is derive
irom the pa}M.'r now before me; and beia
wholly a stranger to the merit of those dispute
that gave riso lo the proaecutiou of tUia pnatei
JiffaLiiik
•btU I turn sdvocau for any
lOwcT in goTeraors ; God forbid 1 iboiild
f of such a prostitution, who know by
ce cf what stuff tbey are commonly
hm wrong impressions they are apt to
oftheuMelfes and others; their pas-
ejiid ices, and pursuits; though when
Nuble allowances are made for certain
tances that attend their mission from
nd their situation abroad, a considerate
amy be tempted to think — it is well they
rorae than they are.
I come to my remarks on Mr. Zenger's
laklering the Defence made for the de-
(Mr. Zniger) hy his counsel (Mr. Ha-
upon Not Guilty pl<>a(led to an- in-
n for printing and publishing a libel,
to the purpose to in<iuire how fhr the
charged in the information are in their
ihelloua ; nor whether the innuendoes
criy osed, to apply the matters to per-
ings and places. It is only neoesnry
MM the truth of this single propositinny
hich the whole Defence is grounded,
whicli the ser eral psrts of it refer ;
, That the several matters charged in
rmation are not, and cannot be libellous,
they are true in fact.
ia the canlioal point upon which the
^gentlcmsa's whole argument turns,
■dli be by a down, o?er<^nd over,
ini principle that governs the doc-
^ Kbela; and accordingly he confesses
nling. and puUishiug of the papers
the informatiaa, and puts it upon the
nuusel to prove the facts contained in
be false; allegin|r, at the same time,
nless that wene done, the defendant
lot be guilty; but if the sstne were
to be talse, he would own the papers
ing them to be libels. To this, it seems
umey General answered, that a nega-
NiC to be proveil ; and the other replied
» words, which I choose to set down,
nay not be thought to do him wrong-
expect to hear that a negative cannot be
; but every boily knows, there are
•xceptions to that general rule : For if a
charged with killiog another, or steal -
neighbour's horse ; if he is innocent
ine case, he may prove the man said to
J to be still alive ; and the horse said to
tn never to have been out of his master's
Sir, and this, J think, is proving a ne-
" Now, 1 must think, that it is strange a
nan of his sagacity, who owns lie was
:d tor the objection, coirid not yet hit
ome of these many exceptions which
Kidy knows ; for he does no more than
0 inUances of one affirmative being de-
1 by another, that infers a negstive of the
at which rate most negatives may be
, and then the old rule may be diseard-
rbos, if it is shewn that a man is alive,
m% clearly that he was not killed; and
«ae ia proved to hare-|iceQ tivayi in
A. D. 17S5.
[TSG
big master's stable (for this it wliat must ht
understood of hii Ma^ never out of the stable),
it certainly follows that he could not be stolen.
80 that, accQNling to this new scheme of |)roof,
he who is accused of killing a man, or stealing
an horse, is to be nut upon proving that be
did not kill or steal, because it is possible thai
such proof mar bo had sometimes : And so,
in the principal case, if a ouustion arises wbe«
tber a certain magistrate has done particulai
acts of ininstice or n6t, the method is to shen
that he did not do such acts, not that he did
them. I have touched upon thu, not for ifti
importance, but as a specimen of the learnei
barri8ter*s manner of reasoning, and of th<
spirit with which he sets out from the begining,
At length however be takes the onus pro*
baniii npon himself; and rather thau the thing
should go unproved, generously nndertafc«»
at his client's peril, to prove the matters, chaigei
in the information as libellons, to be tme. fin
I would be glad to know, by the way, how thi
undertaking gentleman could have proved tbi
tnith of divers facts contained in the pa|)er wbiel
the .defendant published, supposing the Cow
had been so moch overseen as to let him into 1
proof of this sorti Could he prove for ezam<
pie, that judges were arbitrarily disphieed
and new courts erected, in the province o
New York, without consent of tlie tegislaturtl
For, I am credibly informed, there never was t
Kretence or surmise of more than one jndgi
eing displaced, or more than one court erected
ander Mr. Cosby's administration, both wbid
happened upon one and the same occasion
Now 1 would not have this esteemed a captiou
exception, when 1 have to deal with a man 0
law, who must or ought to know, that, if sucl
a jufftiticntion as he offei ed were at all allow
able, it ought to be full and express, so as t
leave no room for a libeller to multiply and ex
aggerate facta at hicpleasnre, when lie is d is
posed to tradace persons in authority ; tber
being a manifest difference between a aingi
act of power without or against law (froi
which perhaps tew governments have bee
free), and an habitual abuse of power in n
peated instances of the same species. 1 wool
further ask, how he could prove, that the la*
itself was at an end, and that trials by jnrii
were taken away when a governor pleased
for, if 1 mistake not, he was at that time speal
ing to a jury in a regular court of law, and in
prosecution which the giivernor had much )
heart (as the gentleman himself insinuates
and -woald have been highly pleased to coi
vict hb client ; yet wouki not attempt it, bi
in the ordinary course of trial by a jury ; ai
then too, oouULnot find a jury iBat wouki coi
vict him. I think 1 am warranted in puttii
these questions, even by the authority of tl
barrister himself, who says, « Truth ought
govern the whole affair of libels, and yet tl
party accused runs risk enough even then ; f
if he fails of proving everjr tittle he has wrot
and to the Rati<«f.iCtion of the court and ja
too, he may find to iiiscost,'* &c.
7312
9 GEORGE It.
Trial gfJofm Peter Zenger,
[732
But for tlie present, I will suppose Mr.
Haiiiilton Mas able to prove all these tliiags;
nay, that the jury knew them all to be true. I
will go further, and allow, that juries in cri-
minal cases may detertnine both law and fact,
when they are complicated, if they will take
such a decision upon their consciences (which
is almost the only point in which I can have the
honour of ag^reem^ with him) ; yet, after all
these concessions, the main question rests still
between us, viz. Whether a writing can be a
libel, in legal acceptation, if the matter con-
tained in it be true ? He is pleased, indeed, to
express his dislike of infamous papers, even
when they are true, if levelled against private
vices and faults; and in this case he calls them
base, unworthy, scandalous, unmanly and un-
mannerly. But surely it might be expected,
when a point of law was in question, that he
would have told us, whether they were lawful
or unhiwful, innocent, or criminal, since these
ImI are the only epithets that were relative to
his subject, though the first might have their
weight m a sermon or moral essay. But, it is
plain, he was aware of the consequdnce of be-
ing explicit upon this head ; for bad he owned
Mch writings to be lawful, because true, he
would have alarmed the common sense of man-
kind, by opening a door for exposing at mercy
the frailtieSf vices, defects and misfortunes of
every person^ high and low, which must ine-
Titablv destroy tiie peace of families, and be-
get illblood and disorders. If, on the other
hand he bad acknowledged such writings to be
unlawful, inasmuch as Uicy concerned private
miscarriages and transactions ; but that every
man might write as much truth as he pleased
about the adminiKtration of the government,
not only by pointing out faults and mistakes,
but by publishing his own comment and in-
ferences, in order to (ill the minds of the people
xvitli all the jealousies and apprehensions his
iniagniation can form; it must have shocked
men of understanding to be thus told, that the
law had provided against private quarrels and
lii-eacUes of the peace, occasioned by virulent
writing ; but had taken no care to prevent se-
dition and public disturbance arising from the
same cause.
His favourite position, however, was to be
maintained at all events ; and therefore, when
the Chief -justice rightly instructed him, that he
could not be admitted to give the truth of a
libel in evidence, that the law was clear that he
could not justify a libel ; for it is nevertheless a
libel, though it is true ; the discerning gentle-
man was pleased to understand by the word
jubtify, a justification by plea, as it is in the case
of an indictment for muitler, or an assault and
battery : there (savs be) the prisoner cannot
justify, but plead Not Guilty ; yet in murder,
he may prove it was in defence of his life, his
house, &c. and in assault and battery, he may
give in evidence, that the other part^ struck
first ; and in both these cases he will be ac-
quitted.
If the partj in eith^ cue ii acquittedi the
reason is, I presume, because the inalter given
in evidence amounts to a justification in law of
the fact charged on him, and is e^uimlenitpa
confession and avoidance in plcndio^. In like
nuinner, if truth be a sufikient justification of
a libel, the defendant will be acquitted opea
proving the contents of his paper to be true.
Now let it be observed, that the wnrds of the
book which the chief-justice relied on ««
these : It is far from being a justifioMion if
a libel, that the contents thereof are tran—
since the greater appearance there is of truth
in any malicious invective, so much tlm nuan
provolcing it is. That this is good law, I hept
I shall be able to shew fully hereafter, as 1
shall shew, in the mean time, that it is an ex-
press authority against the well-read barrister,
who declares, he baa not in all his reading met
with an authority that says, he cannot be ad*
mitted to give the truth in evidence, &c.
He seems to take it for granted (and I shall
not dispute it whh him now) that matter if
justification cannot, in any case, be pleaded
specially to an indictment of assault or mnidsn
but the party is to take advantage of il in evi-
dence upon Not Guilty pleaded. Let it be so ;
yet stiU this matter must be a sufiicient justifi-
cation, or the party can have no benefit from it
any way. In an action of assault and bntlsry,
where the first assault must be pleaded ape-
cially ; the matter of justificatMMi is just the
same, as in an indictment for the same nflncf^
where it must be given in evidence upon tfat
general issue. I ask then, Whether the fint
assault is a justification in an indictment if
assault and liattery ? If the barrister sboaU
answer negatively, such answer is against sll
sense, for the party is acquitted by virtue of
the justification only. If he should answer af-
firmatively, he is inconsistent with himsdf ;
for he has but just affirmed that when the book
says, truth is no justification, it must be on*
derstood of a justification by plea, by which be
must mean that nothing else is a juatificatHMi
but what is pleaded, or he must mean notbiog
at all. For the words of the book are^— it is
fiu" from being a justification, &c. it is not said,
— ^you are far from being at liberty to plead it
in bar. In truth, the author is not there speak-
ing of the forms and rules of proceedings upon
libels, (1 Hawk. chap. 73, § 5, 6, 7,) but upon
the substance and nature of the cnme, what
shall and what shall not excuse or justify it.
This is manifest from the reason subjoins to
support his assertion, viz. Since the gn-ater ap-
pearance there is of truth, &c. which is a soTid
reason grounded on the wisdom of the law,
which punishes libels even against private |)er-
sons, as public offences, because they provoke
men to acts of revenge and breaches of the
peace. I hope it will not be said that a libel is
less provoking, because tlie truth of it is to be
given in evidence, than if it was to be pleaded
in bar.
But all this is Star-chamber doctrine with
the banister, and the very mention of that
ooort terrcs him for an auwcr to nraiy thing»
for n LiUl
Ar obiclt he bu BO other ansirer ; beraiiHlhe
m»m*rj <tX Ihat Irihiinal is juilly dolested un
acc«iiiil of Riaay illegal and exorbiunt pro-
aedioKJi. No ; lUia is Ihe auiborhy of Mr.
imMDl Hawkins ftliouf;li lie uses mirciD'l
metrnm lo some Sisr-vliBDiber cukf*). wliose
dHDC ii too infill Id receiTe any idclition from
Ail P*||''<'> Bi"! "'ho, after a long and ituilloai
wmtelt m th« crowD-Uw, laid down iliii propo-
Hm for law at the lime he wrote his hook;
ari 1 believe it will appear in the lequcl thai
k(«U not mblakvo. AiiUnowlconae tajaiii
iavMitti the harri«ter tjpon lliiN^oiai, who-
ihrMr. Serjcnnt or be is in the right; or, in
ribtr worU, whether tiiltitjr in fact be eisen-
lHllOBi>hel,»olhat the truth oftbe I'act may
UgifMi inefhlence to proTe n Miillnglu be no
UomaintainatbeaffirinaliTe (if the question,
tMh from what he understands to be the au-
thaiiUM in Ihe case, and from ihe rraeon of
lb* thine- All which ihall be considered in
tWIr dnler.
Hie authorities cited by nir. Ilunillon lo
Mfport the propomilon formerly itated, consist
■ncipaNy ofl'our eases, which 1 ahal I consider
litte nrirer as they were produced.
Tbelimt is the case of John de Nortbamp-
M, 18 Edw, 3, 3 Inst, 174, whicb he ub-
MiHdoesnalappear la Imve been a cassupoa
I, but Ihat he has good groimds
upon an indictraent. This ii
ihall not cooleit wilb hiu, because it ia
MaUcriiil, or indeed euy to lie determined,
lAliMlaecinfrihe record; tboucrh 1 conceive
■tevmgrouiids to Bay it was not upon an in-
Mwat, u wai the case nf Adnni de Ravens-
■Wb, inMtioned by lord Coke in Ihe sanie
4Hlir. The case, bowever, standi tbna:
'Mb de Northampton, an attorney of the
'tt0-bent'h, wrote a letter to one' Ferrers,
'•H»rtb« king:'! oonneil, that neither sir Wil-
"^ *" chief-justice, nor his lellows the
, nnr their clerks, any great
)ty the comtnandment of our
king. Set. which laid John being
■■J, oonfetBed the letter, &c. El ijuia
■MUm Johannes coffnovil dictam hie-
■ per ae seriptam Ruberlo de Ferrers,
4tM deconcilio Itegis. quic btera coclinet
'•tnullam verilatrm: pTtetextucujusDom.
I' BCi ern Curiam el Josliciarios suos habere
'mwt ndignatiooem, quod esselin seanda-
' Un Juuic. rt CuH». Ideo dictus Johannes
' Minmitiilur. Sec,* Here says the barrister,
-iiientil appears the libellous words
: lUe, and there the falsehood was
I IV the y^uod of the judgment.
' 11 |>[irl, i can neither see truth nor
iiMi.iuil ill the words at the time they were
■W*, for tbey refer to a future contmgency
I M uiehl, or might not be as he said ; anil in
they were the same as if the man
o rnof of Westminster- hall would
William Scat and his fellows. Be-
ords lakcu by themselves have no
\ bit 1 inspiD* it niH b« alloffeil
tinrii
-MB scoi. a ciiiei
'Ui^'i jnstices, t
'Um wottid do b)
■W Ibe king, &
A. O. I75S.
tliat most of Ihe great things whicb judges do
OS judges, are such asouKbt neither lo be done,
nor Idl undone by ibe king's commaodiuent.
Where then was the offence? The tccord, I
think, shews that in the following words :
" prsteltu ciijus Dom.Rex erga Curiam el Ja»-
*' tic. siios habere (losset indignationem." See,
" Ideo dictus Johannes cominiililur," dec. It
Uobserrable, that the sulhor of Ibis letter was
Bn altorney of the Court, >ud by the coiilenia
lliereof he presumes to undertake for the beha-
viour of the judges in some great innttersthst
concerned llieir office. Tlie letter was ad-
dressed to a person who was of the king's
conocil, and luighl possibly cnmmunicalelDe
conleols of such a iMIer to the king ; the coD-
Bequence of which might naturally lie, ihst
*' Dam. Rex habere posset indignaiionvm erg*
" Curiam," ice. far great things were some-
times done, in those days, by iho king 's com-'
■uandnient ; and the judges, besides, held their
posts at will and pleasurt-,
llii! uorits " quEe liters cominetin se nnllam
veritslcm," were ihcrelaia proper for the
Judges to insert, in order lo acquit ibeotselvei
t(i the king ; but they are no roore the groDad
of the judgment Ibon these other wurils, " ooi
est de Concilia Regis ;" both being only ic
dental clauses thai come i~ ' ~ " '
iiiILun
by way of descrip-
Quia htera prKdicIa
•— '■ After all, 1
of the case,
pots merely upon my
would not hare
plain and nalural as it , , _, ,
awn credit ; for I Ehall shew that this
was so uodiffiiood by one of the greatest law-
yers of his lime, before lord (.'oke's 3d Inst.
appeared in the notjd.
SI Jsc. B. ft. Tanfield v. HJroD. Godbolt
405, 0.
The plaintilF broughl an action upon Ibe
case agatiisl the defendant, for delivering of b
Ecandnious writing lo the prince, &c. Noy for
the plaintiff cited, 16 Kd. 3, a bnter was sent
lo Ferrers one of the king's council, the elfect
of which was, that Scot chief-Justice, Bnd bis
companions of the same bench, would not do a
vain thine ai Ihe command of the king; yet
because be sent such a letter to Ibe king's
council, allboiigh be spnkeno ill, yet because it
might incense the king against the judges, be
was punished. If no ill was said, will it be
pretended that the falshood of what was said
could be a reason for nunisliing a man f Is it
not ridiculous to say, that the falshood of inno-
cent or iosignificini words can be cTirainal F
This booh, iberefore, Ibllows the record of
Northampton's case, andsays, because it might
incense the king against tlie judges, he was
punished ; which is almost a translation of
' proHexlu cujns,' &o. which was the grouoit of
the Judgment, ' Ideo com mittilur.'
The next case which the barrisier called to
his aid, is that of the t^ven Bislions.* And
here he relies on a flourish of oocoftiie counsel
for tho bisliops, and a dubious cxprmion of
735]
9 GEORGE XL
Trial of John Pder Zengeff
[73
one of the judges, teparited from tberest of
bis discourse.
SSir llobert Sawyer, it is tnie, says, f* Jlolh
the foiuiy of it (the libel) and that it was oiali-
cious and seditious, are all mattf^rs of fact,
which they (the kinsf's counsel) have offered to
the jury no proof of,** &c. This, I must con-
fess, proves one point to which the Imri-tster
adduced it, viz. that he was not the first who
insisted that to make a writinfif a libel, it must
he fake. And when I have allowed this, I
may almost venture to cay, it is the only point
he does prove from the l>e^inningf tn the endings
of bis lony^ elaborate speech. — ^Let me, however,
oppose to this the reply of sir Thomas Powis,
in these words : ** Whether a libel be true or
not, as to the matter of fact ; was it ever yet
permitted in any court of justice to be made a
i|uestion, whether the party be punishable fur
it ? And therelbre I wonder to hear these gen-
tlemen say, that because it is not a false one,
therefore it is not a libel." Fol. 382.
Mr. Justice Powei also does sa^, that to
make it a libel, it must l>e false ; it must be
malicious; and it must tend tose<Iition. U|)on
which words of this learned and worthy judi^e,
I would not presume to offer any comment ex-
cept that which other words of bis own afford,
that plainly shew in what sense he then spoke.
His subsequent words are these : ** They," the
bishops ** tell his mnjcsty, it is not out of
averscness to pay all due obedience ; nor want
of tenderness to their disscntin)^ fellow- sub-
jects ; but because they do conceive the thin^r
that was c(>mma:i(!rd tl;cm, was a«rainst the
Jaw of tlie laiui. Tliry k\\\ they a|)j)rrhriid
the J>(vlaratioi) is iliO^a), because it is founded
on u disnuiisin^' power. 1 do not rcinriiii'.i'r in
any case in all onr iuw, tiiatthcio is any such
power in the kiii.^-; und the case nuL-^t turn
upon that. In klioi:, if there bu no such dispen-
sing po^vcr in the Uin;jf, thou th;it can be no
libel which thoy presented to the hin'^, which
sa^'s that the DiTlaratian Iwrntr founded upon
such a pretended power, is illes^l." 8o that
tlie jud(;(' put the whole upon tliat sinq^Ic point,
whether it be true that the kin^;- had such a
dispensinir power, or not ; whicii is a quesu'on
of law, and not of fact ; au;! arc'irdinjrly the
judg-c appeals to his own readini^ in the law,
not to witMCsses or other teslinioiiv, for a dcci-
sionof it. In truth, the Petition ci'ihr lii>hoj)s
i» not capn^'Ic of h::\inn^ ialshofd or Irnih ap-
jilied to it in any other sf^nse, tnue hAu'^ no-
thintr else afiirmcd or denii'd in it. huliUacthev
thouj^ht the}' could not do A^h^t was com-
manded them, because it was a^\;!nsi ihc law.
This was the behaviour, these were tho scnii-
nienls of that upris^ht judg^e, that £:;ainod him so
mncb honour among^ all ^ood tuen, as the bar-
rister takes notice ; Lot any o|iinion of his,
that the contents of a libel mu^t be false in
iact, to make it a libel ; as he would unfairly
insinuate.
Sir Samuel Barnard iston*s case is the third
that is touched upon ; and here too ihe gentie-
Aiao fuuis Dotbing that can be strained to his
purpose, but tho defendant'* eoontel insistiDi
on the want of proof to the malice and sedi
tious intent of the author. He seems to ha?
forcfot tliat the same {gentleman insisted also I
have it proved, that the defendant was a pena
of a turbulent and un<fuiet spirit, because thn
words were set forth m the information ; an
be takes no Misuner of notice how all this wi
answered, which 1 must now do for biro, in th
words of the Court : ** Certiinly the law sup
plies the prciof, if the tbinpp itself speaks roabe
and sedition. As it is in murder ; we say ij
ways in the indictment, be did it by tiie inli
fl^atwn of the devil : can the jurv, if tbey fin
the fact, find he did it nctt by suck instigatioa
No, that dues necessarily attend the very m
ture of such an action or tbingf. Ho in iafoi
maiions for offences of this nature, we say, h
did it falsely, maliciously, and aeditiouslj
wliieb are the formal words ; but if tbe natim
of tbe tbin{f be such as necessarily impom ma
lice, reproach and scandal to tbe govemmeol
1 here needs no proof but of the fiict done ; tki
. law supplies tbe rest.'* How shall any mi
prove another person's malice, which is i
thinfif that lies only in a nnan's mind ? Hon
should any man know Chat I am malidoH
aifsiust the gfovernment, but by my actions i
These words, inileed, were pronounced by Ihi
chief justice Jefleries,who was then themoadi
of the Court ; but tlioofrb be was really an is*
teuijierate iudipe, (or a monster, as thebanislcr,
in his bar-lan(f uage, deli|;bts to call bim) yet I
may safely n^er it to all men ol^ law, wbetta
these words could have discreilited the b«l
month that ever spoke upon that bench.
Au instance of this soii may not be imperti-
nent, u here a chief justice (wh(» was no moB-
stor) addres-seshimself to a jury, that was trying
a libel in this manner : '^ I will not repeat tba
]»articulars to you, oidy somethinjir to what tbe
defendant has said, that you may not lie milled.
He says, it does not appear that he did it mali-
ciuusly or knowingly. There are some ihioc!!
that yuu that are of tiie jury are not toeipect
evidence for, which ii is imposKiblc to kino^
hut hy the act itself. I^ialice is conceived in
the heart; no man knows it, unless he dedsrei
it : as in murder, I have malicv to a mau ; no
uiao knows it. ] meet this man and kill biin;
the law calls this malice. If a man spetk
scandalous words against a man in bis calling
or trade, he lays his action, malice ; thoiHfh he
cannot prove it but by the words themselves;
you Uiay see, there is malice supposed to i
private person in that slander, much nnofeti
the king and the slate."
Tutchiu's case, the barrister docs not proper
ly cite, hut endeavours to answer as a caa
ur^^ed against him by the kind's counsel; ad
therefore I shall observe upon it in aiiotbe
place.
Bui the case of cases is still behind, whid
liP reserved lor cIm> last, to make the point cleare
on his side, than all the rest put tofifether couli
do. It is Puller's case. And it deserves no
lice, that although Fuller was charged with writ
757]
for a Litcl.
A. D. irs5.
[738
3
ir^
lag' a libel, yet that was not the firist of the iii-
formatioo. He was, in truth, pi-osecutcfl for
lieiugf a cheat and impostor, liy order of the
House ef Lords, as tlie king's counsel declare
in the opening.
The iDforinatiou aoconliii{|;ly sets forth,
« That W. F. intending,' the late kin;^ William
and bis subjects to deceive, and to get several
Kieat sums of money fraudulently and deceit-
fsUy from the said King, concerning a corrcs-
pSMOicy between divers oflicers and subjects
of lae s^id late king, and the late king James,
fihely pretended to be had ; did write and print
■ fibel, intituled, Original Letters, &c. with the
4ipositioD of T.J. and T. F. esqrs. proving the
eorraption lately practisal in this nation ; and
the said W. F. allerwards did publish, utter,
md for truth affirm, the said several false and
Mudalous libels, without any lawful authority ;
vbercts in truth, the said T. J. did not depose,
■poB bn oath, as is contained in the said lulsc
•nd scandalous libel; but the said scaudalous
fiWs are false, feigned, and altogether contrary
li IruUi, 5cc." Here it in manifest he was ac-
Mri of a cheat, in forging the correspondence
Udtlie depositions just mentioned, with a de-
till of getting money by his pretended disco-
ury. And hence it comes, that the judge very
iroperly asks him, '* Have you any witnesses?
If yoa lake upon you to write such things as
JM are charged with, it lies upon you to prove
Ikn true, at your peril. How came ynu to
vrita these books that are not true.*^ If you
britaDy witnesses, produce them." Tims said
lad thus did that great man, lord chief justice
Boh; but not upon a trial of the like kind with
Nr. Zenger's, as his counsel would hare it
tboaght. For, in this case, the cheat and the
■ijio«iure was the oflence, which consisted
^oliy in the falsity ; that is, in aflirming such
IkiD^ for realities, when tiicy were nought
bat Hotions. On the contrary, had he been
iUe to prove those letters and thoie depositions
to be authentic, the discover y would have been
^•luable, and might iutille liini perhaps to fa-
^ur and protection, instead of punishment,
W«fer irregular lie was in taking such a me-
thod to publish matters of that high consc-
IJneoce. After this, let the learned barrister,
in all his rrading, shew an informal iun or in-
dictment for a libel, where the falsity is assign-
ed in form with an ubi re tern, as ibc foundu-
lioa of the offence, which is done in ^^dlcr*s
cue: and then I ni'l ackuowlrdge, that tlie
^sntjiins put here by lord Holt would have
oMn proper, upon tht; trial of his client.
This is the sum <d' the barrister's law- cases.
And IK it not high time to nsk, vi hctlier such
Ipostsiiiisn'presentations of the bmiks can proceed
fraiD ignorance or dii: ingenuity :' He tliut as it
will, it might certainly l»o expected, thcit a jiro-
ysaiion, advanced with sn inuc'.i assurann*, by
■ Man of years and reading, should havn been
sipported by some one authority in point, ra-
ther tbao by a series of hiw pre^aricatiun and
qailible. CJoqld be not find, in all tlio hook-
» and trials at large, couccrnijfig libels
VOL. XVII.
(which are sufficient of themselves to make a
large volume,) one example of pi-oof bi'iiig re-
ceived to the truth or falsity uontaiued in a
libellous writing ? Indeed, there is nothing
like it to be found ; thuugii the occasions have
been many, whore such proof might lie had, if
it were pri>]>er ; nay, where the truth of the
thing was notorious to all men, and yet da
ffucstion ever moved concerning it. This shall
fully appenr in the sequel.
If any thing can be necessary further to ez-
|iose Mr. Hamilton's doctrine* of libels, after
answering his own cases, it is only to subjoin
some others, that will shew how much he is
mistaken in almost every thing lie has ofl'ered
on the subject. I shall therefore mention a
very (tiw, that will bear a particular application
to his crude notions, without entering into a
multitude of othera.to tire the reader.
16 Car. 2, the Ring v. Pym, 1 Sid. S19,
O.K.
Pym was indicted at Exeter for a libel, which
he delivered to a parson to be published iii
church there, and was to this ed'cct: *' Vou
are desired to bewail the sodomitrv, wicked-
ness, whoredom, lewdness, that is oflate broken
out in this formerly well-governed city ; that
God would turn their hearts from committing
those wickednesses which go unpunished by
the magistrates." Pym confessed the indict-
ment, and was fined 100/. He afterwards
brought a Writ of £)rror, and assigned for
error, that this was no offence, because though
be says, go unpunishe^l by the magistrates;
yet he does not say that the magistrates knew
of it, and wickedness unknown cannot be pn-
nished. It was answered by the Court, that
this contiins matter of great scandal to the go«
verument of the city'; for it makes the lata
government better than the present, &c. Hide,
Twisden, Kcelyng, Windham, Just.
I have pitched upon this case, because tha
barrister is fond of comparing the plantations
to large cor|>omtions ; and he will find here,
that even those arc not \e\\ to the mercy of
libeller:?, although they do not put in a claim to
the sacred rights of majesty : and that a mis-
behaviour of this kind to the magistrates of a
corporation is not entirely innocent, because it
is not to be judge*! of, or punished, as a lika
umlutifulness would be to our sovereign.
This ruse was adjudged about four years
afW I lie Restoration, when the memory oY the
preceding usurpation was fresh in every body's
mind. It is strange, therefore, Mr. Pym did
not put himself o:i his trial at Fxeter; for it
was evident, iR'Vond (*(;ntraflietion,tothe peopla
of that agclVom tliuir own knowledge, as it is
now to us from history, that tho wickedness
sp'.'ci!ie<l in the iibil wa** restrained by a stricter
hand before, than alter the Restoration. Rut
this notorious trulii, it seems, did not avail Mr.
Pym.
13'i Car. 2, the King v. Saunders. Hayro.
201. M. R.
Information for writing a Rcandalnni libel to
H. Rich, who was iodebtctl to him, and kep|
3li
739}
9 GEOBGE II.
Trial ffJohn Peter ZengeTf
{7«)
biin out of his money tliree years by ohtainioqf
a protection, and at length getting into the pri-
son ol'the Kln(|;'8-beuch. SaiintUrs wrote him
a letter, wherein he tells hiiu, That if he had
any honesty, civility, sobriety, or humanity, he
would not deal so by him ; and that he would
one day be damned, and be in hell ibr his
cheating ; and cited neveral places of Scripture
to make good his allegations. The defendant
was found guilty, and moved in arrest of judg-
ment, that the substance of the letter is not
scandalous, but impertinent and insignificant,
fo. Cur. The tetier is provocative, and tends
to the incensing Mr. Rich to break the peace.
The Court adjudged the letter scandalous, and
fined him 40 marks. Keelyng, Twisdcn,
Aainsford, Moreton, Just.
I ivould intreat the clea^ sighted barrister to
look cai-efuliv into4lie words of this libel, and
try if \w can discover any truth or falsbood in
them that was capable of proof. And I must
remark upon both these cases, that though
they were adjudged in the reign of king
Charles ^, yet neither of them was upon a
state -prosrcuiion, or at a time when the spirit
pf \Aoia and factions had infected the courts
o^* jtijticp ; but they remain unquestionable
authoriiies at this day.
The citfic of Tutchin is strong against him ;
a case arljiulgcd since the Revolution, befure
that learned and upright judirc sir John Holt,
and plainly shews the fallacy that runs
throughout his whole argument.
The paints insisted on by this chief jiistirr,
in his cliar«^e to the jury, wen? these : *' To
say that I'.oiriipt ofHctiS arc appointed to ud-
minister ullriirs, is ceiluinly a rctlectuin on the
goveiiiinciit. If people should not be called
to an arcoiint ior possossiii^f the people with
an ill opinion <»f the QfovcinuKhi, no govcrii-
mont ( an subsist : Novv you ai\ (t> coiisidef,
wliethtT tlu sc wokIs I have read to vtui do
not tend to begot an ill oiiiiiion of thu admi*
liistration of tlic govcriiiiiciit ; to tell us, that
those that are empioycil know nothing of the
matter, and those that do know are iiot rni-
ploycd. I^Ien are not adapted to oftiocs, but
offices to men, out of a ) articular reiCiv.-d to
their interest, and not to tUtir fitness for the
places. Tins is the purport of these papers."
If tills was the purport of the papers, and so
criminal as hatii been jnsl said, it is amazing
sui^^ly, tliat !Mr. Tutchin did n«>t ofl'cr to prove
the truth of these nllcLfntions, and thereby
take out their stini; ! (-onUl not he possibly
think ot' as many corrupt or incompetent
oHicei*s, rccU>sia!«tical, civil, or uiililary in
Kngland, preferred by interest rather than
meiit, as there were jud<xes (!iK)ilared and
courts erictcvl in New- York? Or if lie wa.s
Tutchin's trial, it was the My Mriml witbiii
the memory of man, or the roaoi of Ustorji
that wasted the like.
But the misfortune was, the poor man wm
not blessed with Fuch skilful connsel as is ts
be had in Philaddphia, to think of these floodf
things for him ; • otherwise you miglit 'navo
heaitl an alert advocate (atler retaroing thanks
to his kn-dship for nothing) address himself ts
the jury in this or the like eloquent straio :
*' Then, gcotlemsn of the jury, it is to you wt
roust appeal for witnesses to the truth of ths
facts we have offered, and are denied tbs
libert}' to prove: the law supposes you to be
summoned out of tiie neighbourhood when
the fact is alleged to be committed ; and the
reason of your being taken out of the ndgk-
bourhood is, because vou am supposed to have
the best knowle<lge of the fact that is to be
tried. And were you to find a verdict agaisit
my client, you must take upon you to ssy,
the papers referred to in the iofbrroatioii, sod
which are proved to be written and publiibed
by us, are false, scandalous, and seditisof.
You are citizens of London, honest and lawftl
men, and the facts which we ofler to profe
were not committed in a comer ; they are ne-
toriously known to be true. And as we
denied the liberty of giving evidence to pnfs
the truth of what we have published, I vill
beg leave to lay it down as a standing mie m
such cases, that the suppressing of evidesce
ought always to be taken for the strongest eii-
dcnce; and 1 hope it will have that weight
with you. Lay your hands upon your hearts,
gentlemen, and recollect : do none of }ou
know, nay, do not all of you know, certaiii
persons, wlio sliall tic nameless, that have beeu
lately promoted, by favour and interest, \a
places of trust and proiit, Iiolh in church aud
Slate, army and navy, whom you must knotr
and believe in your consciences, to be ill nieo,
and no way qualitied for such preferment ; ii
tnv sanrncious client li'\s most seasousblv rt;-
monslrated to the neiirli-ours. by virtue of tint
right which every free- born sidijcct hatb of
publishing his coinpIiMiils, when the matterf
so published can bo supported with truth f**
Hut is lord Holt asleep all this time? C«d
any reasonable man, who has hut common no-
tions of judicature, ininc^inc that this £rreat
judge would suiler such trash as this to be
thrown out iu any court where he sat injud;;-
ment? Hut what must he have said, if tlie
libeller bi'fore him had oU'eied to prove, that
the law itself was at an end ; that trials I*/
j lilies were taken away Mheii a minii»ter
pleased ; that no man eonll call any thing
his own, or cni<iv any lilnrtv, longer thuo
those in the adininistratiMi uouM condescmu
restrained, by the hard-Iftaricd jinl'^'-e, fi«»m | to h:t him do it? Would l»c have saiil, that
dispi^rtins: him^clt in this pltasant and s^arifMi^ j then.' tliins;s ('id not tend to ]H)ss€ss the people
field, rouM he not apply to the pviv^'tf kuovv- j with en ill opinion of the government; and
ledge which the jurors (as wrll as ilie r( m^ of ; t!i U ;:ovrrnuienis might well subsist, thocgb
nankiu.'l) had of these inattfrsi* I'or I inK>- ! men rliould not he called to an account for
/rine it will be allowed, that if uo in^taiiees uf : ptiblishiog the like? Or would he have fsid,
iiu'g Mort could be shewn at the time of I it waai no matter what opioiua the people bad
9 \
9!tQ
fiif tf ZaM*
A. D. I735L
£»«
4if tkm gmmmmnuU iwr whether it tobMitAd
•r Boiy puftfided UiMe uwrtkms werA true ;
and so hkve diaeharged the man m a puUisher
«f Mcioiia and utrifoi tratbt| ta put the
■MhbfHwd on their guard ?
Ml hcra alto tiM barrieter laye hold of a
qnettiooa pot by one of the kiog'e
tf9 Mr. Mootafipue, who was for the
and was tbra touohtng^ upon the
of the Bar J : 8aith the tbrmer. Will
ly thej are true ? Now the latter had
I mm much as that thece thiofifs were true ;
Mdid it with that cautioa which a maa of
dUB uses, when he would say somethiof in
^iporl of a lamia cause, but don't care to press
m ■apropriety too far. For that learned gen-
waa very sensible, that if he had pre-
to insist expressly on the truth of the
I oontaiaed in his client's papers, a
reprimand was the best tiling that could
befallen him. Hi* words are these :
**MMNly can aay, that we never had any mis-
■■igtBieotr in the royal navy ; and when-
4v that has happened ; the merchants of
Mrind, in all probability, have suffered for
ii"^Biit does the judge, In bis charge to the
^rp, v4Mcbsafe to give this matter any answer,
•laiMieh as to mention h? Lord Holt did
Mtasoaliy pass by material things, that were
sflmdin defence of persons tried before him ;
yily in this case, he makes no question or
■rifle about the truth or falshood of Tutcbin's
MM^ although they coutaioed many thinsfs
vhieh his lordship, the jury, and all tlie
VvUluiew to be ****. This candid jwlge,
Vnifer, putt the merits of tlie whole upon
tht waadal of the government, and the evil
IttiHey of such writings. And therefore 1
Mrtsnce more call u|K>n the northern barrister
1| ihew a single in^ftance, where witnenses
kMebecn produced by counsel, and admitted
W^the Court to prove the truth of a libel.
Whsa he does this, it v»ill deserve consi-
^natkra ; but till then, he may talk by the
hiar without auy meaning.
1 could mention some cases of a more mo-
dnn date, that have been adjudged in West-
tiismiii hall, when this wild doctrine was not
unseh as thoocrht of, and when it would not
Ws-been altogetner useless, had it been prac-
tiedils; but I have chose to mention such
illy ss are reported, that the books may speak
ftr Ihemaelves, and judge between us.
Bai this lawyer aeems to be above having^
b points of law decided by the authorities
tf loe law ; and has something in reserve,
vUsk may serve to overthrow not only what
tps been offeretl in this paper, but even all the
liaks of the law. This is what he calls the
iHMa-of the thing; but is truly and properiy
ajketeh of his own politics ; which leads me
lishew, that the true reason of the thing here
Ipeea with the law, and consequently both
ftaae are agaiqst this expert master of law
TIm reasoD' of the thing, as well as it can
h^MysoMlfMil a heap of particulan haddled
together wittloat order and method, may be
reduced to the tliree Ibllowing heada :
1. The form of an information for a hfada
and the necessity of knowing the truth or
ftilshood of its contents, in order to direct the
judges in awarding arbitrary punishment.
S. The right every man hath of publishing
his complaints, when the matters so published
can be aupporled with truths
3. The necessity there is of using this ritrhty
in the plantations especially, by reason of itss
difficulty of obtaining redress against evil go-
vernors oy any other means.
1. It will not be improper to premise, under
the first bead,. that a gentleman of tiie 1(^,
who takes upon him to |ironounce so magiste-
rially as the northern barrister has done con-
cerning libels, ought to have considered- well
the nature and eitent of his subject, ft might
be expected, that be is not unknowinff in: any
part of learning necessary to (ix his- idea of a kw
oel ; and yet&e present case would appear to
be quite' diiesent. This learned gentleman
might have informed himself, by reaittni* some
of the'ancieut laws bcture the Conquest, that
when the fUsity of virulent writings and
s|)eeches was taken into the description of the
crime, there was a specific penalty annexed,
via. Gutting out the offender's tongue, Lamhi
Sax. Laws. But- this Severity seems to have
fallen into disuse under the Norman kings; and
accordingly Bracton, who wrote in the reign of
Henry 3, gives a description of these offences,
as they were understood in his days, wherein
fiibity ia neither expressed nor implied. These
are hia words : ** Fit autem injuria, non solum
mm quia pngno percun-sus fuerit, verberatus^
vtilneratua, vel fustibus ciesus ; veruni cum el
Convitiuni dictum fuerit, vel de eo factum Car-
men famosum et hujnsmodi," fol. 155. in-
deed, here is no mention of libels against the
king, or the state ; the reason of wlijcli seems
plainly- to be, that offences of this sort were con-
sidered as a species of treason, not only Jn that
age, but in several ages after, notwithstanding
the statute 25 £d. 3, antl though they have by
happy degrees dwindled into misdemeanours,
yet nobody, except the barrister, will say they
are come to have a greater indulgence from tha
law, than the like offences a^inst private per-
sons. How far, therefore, Bracton^s accepter
tion of a lil>el liaa prevailed ever since, must be
submitted upon what has been offered in the
preceding (lart of the Remarks.
Here the barrister throws in a shrewd ques-
tion, arising from the form of the ioformationt
which charges the libel to be false : This word
* false,' says he, must have some meaninj^,
else how came it there? 1 hope Mr. Attorney
will not say he put it there by chance; and, C
am of opinion, his information would not be
good vritbout it. By way of answer to this, i
must take leave to put a question or two in the
same strain. Suppose a man brings an actioD
of trespass for violating his wife, and ii" *aiily
sets forth the truth of the case, viz. That the
defendant, by amorous addrenes, Ul
¥\1i3]
9 GEORGE II.
Trial nfJJin Peter Zenger,
•enU, <l!i;c.<)icl gain the content of the pisinliff's
wife, anil B I leaglh debauched her: I would
uk, nlicther aa BCtioD of tresjiaM thus laiil can
be su|>|wrteil i" I fancy not ; nnd yet thin is a
.marc just account of llie mailer, than when ri
tt armii, (iz. sffnrde, Etat es, knitei, fte, are
introdaced as iiistriiments of invBiling Ihia
lender jiArt of our nFii;hbnur'i prn|ierty . tSnp-
pose further, a man kills aoolher, whOTii lie
nerer mw or heard of before, anil lie if oceuseil
of mirderiu^ him ornulice fore-lhout^hl, how
eaaic inch words to be (lut into bd indlciuient
for a lat't so circuaiitanceil ? Tliey must hare
•ome tnca]]iti|{ ; surely thpy are not |>iil thers '
by chance : aud, I ani of oiiinion, the indict-
nent would not be good without them ? Why,
there \% this short answer to be given to all
these c hi] ilisb rjueations: Ihereare many words
used in pleadings of most kinds, snmclioies for
ftggTtTations, Bumetimes for com pre hens Inn,
unea in compliancy with anciMit usage, which
>are not trarer»alile, and many times arc incspn-
blc of proof. The Ibrm of indictnKnls and in-
formations follows the nature of the fiicl, and
■els it out in its worst dre«s ; and if the lacl is
made appear to be unlawful, all the hard names
ve supplied by implication of law.
This II not all, quoth the counsellor; " It is
said, Ihal truth makm a libel the more ptoTok-
ing: well, let us agree for once, that truth is a
greater sin than faleehood ; yet, as the oRence*
ure not ei]ual, and as the punishment is arbi-
trary, is It not absolutely necessnry that .they
tliould know whether the libel is Ime or false,
that they may hy that means be able to propor-
tion the ppuiabmeut P For would it not he a aad
case, if the judges, for want of B due informa-
tion, slioiihl chance to give as severe a judg-
ment sKBinst a man for nriling or publishing a
lie, as tor writing or publishing atrulh ?" Now
is it not a sad case, that be should want to he
told, that human laws dou'i strictly regard the
moral prsiity of actions, but their tendency to
hurt the community, whose peace and safely
are their principal objects ; so that hy tins
Btandanl only are punishments racBsured ? If
litis vrofounil sophistar is of ouolher opinion,
Ut him giye a reason why it should be a
g'Mtcr crime in our law fur a man to counter-
it a ailrar Bliilliug, than to cut bis fatlier'a
Utrual.
%. Tlie right of renionstraling or publishing
just cum plain Is, the barrister thinks the right
of all freemen ; and to think I, (iroiided such
reinonslrnnceE and comptaints arc made in a
lawful way. But when becomes to explain,
it it not a court of justice, it is not a house of
reprcMiildiiies, it i* not a legislature (hat is to
he troubled (as he phraaes it] with these tilings.
Who then, I pray, is to be trouhted with them ;
for the king, it seems, is out of the question ?
Ijct the barrister speak for himself: They have
• ri^lit, (says he) puhlicly to i-emoostrale
against the kbuses ul power in the sirong^ct
terms, to put their neighbours upon their guard,
tec. and in another place, bespeaks of it as a
kardship, If a iuaii nuiu be taken up as a ti-
l»ell(T,far telling hissufferings to bit w
Ni>w. ihough I wish anil hope, as eai~
he can du, that a free tieu|de may n<
tbe meaiisuf ulteringthrir jiiBlcomplsti
of redressing their wrongs too, whea |
comptaintsarennl tieani ; yet latwavsl'
these things were better uixlerstood tli
pressed in a couil of law ; and I sball m
remain in that opinion, till the leamee ,
msD can produce something from the «
or statute law to shew, that a British >
haso right of apjwBling puMicly to hi* If
bours(tbBt is, to the cidlective Mily of^
pie) when he is injured in his person, rig
possessions. When t am assured tliatM
do this, I promise him I shall n
voyage to that country, where liberty Is «l><fl
underelood, and so freely enjoyed, that I
receive the important discovery from Ih'~
instructive moulh.
I know the law-books assert the r
complaining to the msgistraiea and ci
josiice, to tbe pnrlianieni, to the king hin
butiriebt of complaioiiig to the neiglibn
what has not occurred to me. Alter ^
would not be ihouehl loderogate, by anylk
I have said, or shall say, from ihnt noblepi'
l<>ge of a free people, the liberty of the pi
1 think it the bulwark of all other lih«rty,l
the surest defence agninsl tyranny and 0( ~ ~
sion. But siill it isa ttio-edgedw" ~
ble of cnltiug Imlh ways, and is not
be trusted in the hands of every dtsoon
fiiol, or designing knave. Men of veiM
address (wlio alone deserve puUie Mm
will ever be able to convey proper ideatlt
people, in a time of danger, witliollt rM
vcnniti'r to all order and decency, or eryttlffi
and murder through the streets, if Iheycur
to awake from a Irigbtful dream. Bat I d._,
ogniu urge, that these points are nal ftt lo Ij
discuEsed in a court of Justice, whose julWiM
lion is cii'cumacribed by positive aod kwn
laws. Besides, they tske place properly il ll
sovereign state, which has no superioroiiclr<k|
and where an injured jHraple can eipeot M r^
lief, but from on appeal to henveo, Tbtt icffl
from being the case of colonies ; and tbereM
1 come to sbew, under the third haad) ibal tt)
bariister'i reason of thelbin^ is MoifaerthM
reason inverted, which possibly m»y htlptH
projects of a demagogue in America, but Hi
oeter be reconciled to ihe sentiments of a law
yer, or tbe principles of a patriot, oottsidendt
a subject of (ireat Britain.
3. 1 bate bitherto been taught lo bdinv
that when a brave a od free people havenMtl
ed to ufcasiires unautboriwd by the ordinaf
course of the laws, such messiires have bea
justitied by tbe extraordinary necessity of tl
case, which excluded all oilier means of i<
dresi : and, as far as I undcretaud the cobmI
tution, and have heard accounts of the Britii
coloiiieii, such a case cannot well tiappcii, afl
has never yet huppcnrd among Ihem. Bl
here ibe bairister is ready lo uk, how muM «
bdiave nlicn we are oppicsMd by a gottnm
W-
fir o Lilil.
A. D. 17S5.
'"f'V where llio courts of lutr are said
' r'i.L'rci(e |inwer over Ins [lerMii, aiiil
: . preseDtatifcs of the penple are. hy
, niai1eaccom[dicesnVbisiui<|uityf
i[ L-Hu't he a new discoTEry to tell
yr llial BB Ibe gotemor is a creature
crown, so the moiit natural and easy
1 lu lutik up to Hie hand iliai iDadehim.
itiiagiiie il niav he aftinnml (without
I .\n occasion nrofTering jneeuaetoma-
.11 ITuiie hair dI' the tacts contuni'd !□
'■■ iiiipera, and vuucheil for true by his
. U:iil been fairly repreaenled anil proved
:, Air. Cushy iTould nut hare eonilniied
ingcr in hia tp>*ernnieDl ; and then the
of >ew York laiglit hate applied to itself
JBMTiplian of tlie %o\A hox, ■■ Demerae \r, ■
'libaiftKltA liberlaa hcec lanilem enierpunt,"
»I«proririety and securily, than could
be denveil Trom the inifetuaUB ha-
of Bny lawyer whatsoever. 1 am the
miboldened to aay thus much, became
It il tny lot to dwell iu a colony \»here
'lU not nl nay a been well underttood, at
freely enjoyed, yet I haveknownago-
brwlghl |u juBlice, within ihcae'lail 90
_ ,irha waa not only supported hy acoiincil
rHMmbly, besides a nunieroUB party here,
' kIm by powerl'ol friciidn Ht hocae ; all
Ufa adTDIilBgea were notable to screen liim
noMre, ili»)^ce, and a removal IVoiu
IMI be had abused.
■ not always necessary, thai particular
Ulhoold leare (heir affairs and families
_ja fitantatinns to prosecute a ;;ovcrnoi' in
r«UHini>ler-hal1, iiiilesa their fortunes
in private injuries, inasmuch as he can't Und
bb account in any thing le« than what is of a
jKoml and ;>iiblic nature. Atid when ibis is
Ike rue, I hi>|ie nnne of our colonies are, even
at ibis time, to destitute, but that they can
Had the menns of inHking a regular apphcnlion
(n their aiivereign, either in person, or in his
««arl« al WcstniiDslcr, as tlieir case may le-
Hul the wild inconfislenry thai shines
throii-,'h most parts of ibis ornlnr's speei^h, is
pecubarl y glarmg in tbit pan of it now before
me. The remedy which he sHya our cmiitilu-
lion pit-criliea, for curing or j.rcrenting ihe
■titEaM-fi uf an eril aiinti lustration f" *'■ '"
Bin. 1 ihatt give in bip own words
out livvn otien seen (and I ho|ie it will always
t>e nfTn) ibtit when Ihe repreaenlatives of a free
pcMplf Mr, by just repreaeittalinns or rcnion-
■Iraiici'", iitsde sensibleor the sulferingaaf their
Iclliuv-F'iibjfeta, by the abiine of power in the
Imii'U t>r a governor, they have rWlared (nnd
loudly tuoi thai Ibey vrere not obliged by any
|«w U> Mipport a gotemor, who goes about t»
dt*<Ti>y apinvlnce or colony," Stc. Onewnuli"
Itoa^te, al flnl sight, tbnt Itiia man had th<
aamo nniiim, witli the mt nf mankind, of just
rvfHiacnlatinna and remunslrances to Ihe
fN««tt«liv«a of a free people, which has
1
I in form : I
understood to be by n
dress, directed nnd nresentcif to ijirni ii
'hicb case it is Impeit thnt lliey, being
moved by the comptuinrs of the pciiple, will
stretch fori h their ariDS tn help Ihem. Dul,
alas ! we are all mistaken ; for he tells us, in
the same breath, that the ritfhl way is by tell-
ing our Bulferingstoour npighl>oun ingOKetles
aud newspapers ; for Ihe re present allies are
10 lie troubled with every injury dnne by ai
governor ; besides, ihey are samctimn in llie
plot wilh the governor, anil the injured parly
" have no redress from their hands ; so that
JirsI complaint (instead of the Inst resort)
It be to the neighbours, and so cniiie about
to the rejirrsentatjves through that channel.
Now I would be very glad to know, what the
tiifhbours can do toward;! effecting the desired
rclnrinalion. that will be attended with so gnuj
succcts, anil so few ill conseiiuences, as a re-
gular a|>plication to Ids mnjcsly would be. It
would be pleasant, duublless, to bear this poli-
tician nprak out and esplaiii himielf al large
upon this auhject. I coufess il surpasses my
comprehenriun to canceive what the neigh-
bours, inspired with weekly revelations IruDi
the city journalist, can du with their governor
and assembly, unless it he to reform ihem hy
those pcrEuasivc arguments which the nin/Or
rii neier wanui good store of. If ihis be tbe
pattiol's meaning, his woriU may iMuwiUy be
understood ; hut without this meaning tbey are
mere jargon.
In a word, I shall agree with lite barrister
(and so lake my leare of him), that the liberty
of exposiug and opposing nrbitrary power ra
the right of a free people ; and he ought, at
same lime, tn admit, llist the order of
things, and the peace of aociely, require that
extraurdinary meant should not lie used Ibrllila
purpose, till the ordinary have fnilcd in tbe
experiment. The supreme roagislrnle of an
' idependent kingdom or slate, cannot always
e contrauled by the o'ne, and then Ihe other ia
justitied by that coaiidera lion. But in colonics
that are from their creation subordinate to their
mother' country, there Is no person who is not
conlroulable by regular and well-known me-
thods of proceeding ; and consequently there
can be no absnlule occejuily of flying to enlre-
inities, at least in the tirst instance. From all
which, I conceive, it follows, that locJ consi-
derations, upon which the genllemsn lays so
great stress, conclude direcily Kgnln^i him;
uiid 1 hupe Ihe security which ihe Hrilith inn-
slitutiun ifTordu ID every mnn's person, pro-
jwrly, nnd reputation, as well as to Ihe public
tranqaillilv, n uol leMered hy any distance
from t lie fountain ofpoMer and jiiaiice ; but
that a libel is a litiel, and punishable as such iu
America, ai well n* in Horoiie.
I SID aenmhle, there ii a freedom nf cxpret.
sinn uiipil in llirse pngivre, of which I shtmM
disappnive in the common caiies of fontrorersT ;
hut 1 fuund mysplf under a new««ity of shriv-
ing no rtMpr-ct III the perlnrmniice under cnna)-
delUiun, iiultM 1 were to forfeit the litilotf
747] 9 GEORGE 11.
mi«:1it lie due to the Kciiiarkn. For tboufi^h «
jHwver is free, nay obliged by llie duty of bis
piYiK-sttion, to make the most of the cause be
«8|iouN«iK, (bis real seiiiimeuts liein^ su8{»eDded
for tliat time, by reason of the bia.Hs under which
lie acts) yet when be draws his private opioioii
into the debate, and interests his passious in
the success of it, he then departs from bis cha-
racter, aud bucouics a party, rather than an ad-
vocate. In short, there is an air of self-suffi-
ciency and oinfidcnce mixed with tlie whole
lump, cnouf^h to |;f ive a disrelish eveu to good
sense aud good law ; but is nauseous, beyond
all bearing, when neatlier of these is found.
Among lawyers, 1 was sure this lawyer de-
Bcrvetl no answer ; and yet an answer scciueil
iiidlsponsable, not only 'or the reawns given at
luy scttinsf out, but afso in order to savu many
well-meaning pcoplu from reverencing a piece
of bnflToonery, tliut had been thrust into tlie
world with so much florid conceit, and a gold
box tagged to the end of it: n piece, wherein
the whole roinmon- place of popular declama-
tion (equally adapted to all popular occasiou*)
is exhausicu, aud the Holy SoTiptures brought
in to season his jokes. But as tiiis last seems
designed only for a sally of wit and humour, I
shall not oifc-r to detract tViim its merit ; con-
siilcring too, U had so happy an effect as to set
the good people a laugtking, when tbey heard
the Word of God ini):»t iii^^eiiiou^ly iiurlesque4l
hi a ('hrUtian e\>uvt: a piece that hardly
Trial oJJxihn Peter Zenger^
n«
fession supposes tbem ministen •£ jmiioe;
nnd when this too shall be dtgniticd with a^
plause, and made highly mcriiorious ; 1 coft*
ceive neiiher ((ood- nature, nor the sojemniiy 4
public seals, should rcstiaiu an honest pen ftga
exphidiiig the practice, in order as wol to mi
the progress of its evil eflects, as to ^ercatthi
like attempts for the future.
Virtue and merit, it is most certain, ought li
be encouraged, especially by all in sotboiity;
but when that which is luerely counterfeit lull
gain esteem, stand in the room of what is tmAf
genuine, and be actually loadetl witli the rewirdii
thereof, it does not only frimtratc the origiBil
intffntion of such rewards, but likewise giia
oounteiiaiice to the impostor, and furnish Um
with still further means of vending his fidsi
wares, in prejudice of the public. Now tbii^
with all due submission, I take to he the cm6
of the (Jurpuratiou in North America, with re-
gard to the honours they were lately pleased ti
confer on a noted barrister in those parts, for
his sujipased services in the aiTuir of Zcnger tbe
printer, wbosu trial has been so plentifully dii-
JK'rsed here, and in other places. Aggregate
todies, we find, may be mistakf^n, and tM
often are, as well as private men ; and whea
they do err, it is of the more dangerous collI^
qoence, on account of the extent of their (lowtf
and ioHuPucv*. The province in general of
New York, or (he city in particular, might, for
aught J know, have sufficient cause of coui-
plaint, insoiiio re^jiects, against their then com-
inaudcr in chief, and his administration ; bat
shews tlieuuihor to have been serious wbeu he
proiionnced it, or his wise licnefactors when
they rewarded him ; but that his solv'ma pro- i it is to be considered, that as there never wai
fessions of princiirle and duty cbuipel a chari- • uhe absoluiely free from iaults, so it is the
' great privik-jj^e of the inhabitants %i\^ evtry Bri-
; ti>h government-, that a proper ciiaund is
table luiml to suspect his kntiwledge rather
than his sineiriiy ; and citi/eus are ever
tlioupnt !o be in rarn;>!it. uhen they part uith
th« ir ^«iKl .uii! s!iv:w :ht;ir Ie.iriiin^.
Sir, I vtij^ht to ui^ike an apoluL: v to you for
tre>j»assi'.^ so hmg upon \our |-.iii(.iice. i\hieh
ehuiked out, in all such events, and a nay
I oiK-ii \\-r relKi'. Tbe method, therefore, whicii
, the coDMiiuiien preicril)es ought to be strictly
pursued; and any iiUgal di'vialion is not only
iiii;:iii ha^eheen hrtlei* ein;ilo\ ( d ; hut I (hitter . i:ieonbi»;eiU. a.ul unjustiliabie in itself, but bas
in)'Mifuiih the hopes oilin\iiig some iiiio^tance besiuc^.a leitilHuey to introdiice mischiefs more
iimde for an houist, thoni:!i \uak ai:enipt t(» j to be dre-.tud even than those that were sought
i to be rodiirssid. It is the law which must be
thestp.iiJaiil of ri^htauil wrc:ig ; and whoever
■ has recourso to any other nid, or knowingly
adiisrs tiieriio, in the case of i>articuiar griev-
I ances, cannot act on a true pruiciple of public
j spiiit, hut inuat be inilueueird \t\ unworthy
• iiiutives, and is always Uior^.' or le&a an enemy
to tiie community, aceorilinir lo his situation,
and in proportion !o the talents he iiap|»ens to
re.scue tlie pnit'e>sion of lae lavv, and the in
li.re.st of \\\\ t'ul lihi rty fr(tni the dio;;rat:e thrown
upon both in (Me of our siitw'r>coleoiis. 'fliis
is the trntli, and let it be my ewus.'. I am
}OUrS, <!^C. A.NOLO-A:iLlUCAM:>.
Lett r. IX II.
Sir; It must be moiiit'ying, n» doubt, to a • po<ise<s. If Jlr. Zenpjer then will avowedly
ersoa ^tho hr.s received' peeuiiar marks of- publish s^ Jitious libels against the go vernmeot
under whieii he ]ive$, and his counsel will otfer
to support him by ariiiices unbecoming tbo
Ion,; robe, and advancini; pr< positions mani-
fest I v contrary to law ; as the t'cmcr deserves
1 ) be punished bv it, so the latter, i humbly
presume to say. what- ^cr he may claim from
itamc time the juJ;::uent oi thosr whose vut- ^ hi» client, oitj^ht not to he paid his wages by
fra;;c had btH'nioui uuHoi-thily obtained, liut : a:)y set of men who o.ve their being to tho
when the lan*s are openly |Hi-verted, and courts ■ law. and cuunot exist wiihout it.
of justice, with au air of gravity, drolled oni j liui I shall not 5cru])le to aeknowle-lge bcre^
of tUcir tfstalhisUcd iulc8| by svch nbose |uo- j «ud 1 do it on no superficial obKrratioD, that
public approbation, to he tehl, that the very :>ct
Wiiich proeured it wa-s m> f.u- iVom bein\j ro:ii-
nu ndahle, that it rea!i\ deserved a severe ewu-
siire ; and oiu» would the rather decline such
an oilav. Lou j(istsi>c\ir the occasion, because
it caiuiot be d,)ne without cendinuuincT at the
Jor a Lihc!»
11^1 be a more pemiciom rrcntur^, in a
loion}', than that of a practitioncT of iha
th much a^turaiire, little knowledge,
norals ; a charucter not unheard of in
an one of his majesty's plantations, and
^'et i would by no means apply to Mr.
11, any otherwise than may appear to
from the perfonnanco he has, it seems,
• much pains to publish to the world,
cious llemarks already made upon it by
Lmericanus, will lianlly leave room for
ig to be added that is very mateiial ;
-ikort J shall content myselt with a few
;s only, and mnke some cursory reflec-
?reon, whilst they afford me an oppor-
f bearinj;^ my testimony also aj^inst
think the most indecent heha?iour at
it may not be called thcbfddest outragfe,
r was exhibited from the bar, without a
chastisement.
iver has enquireil into the doctrine of
id tiie reasou of their punishment, wiH
, that thoy take their degrees as they
rifate persons, particular magistrates,
limed aj2fain«t the government itself;
lay vent tire to say, that no lawyer of
m will deny but what is set forth in the
lion against John Peter Zen&^er tvas of
kind, and that too conceived in the
(erm^f, such as will not admit of a dif-
onstructiun, or of any other meanin>;
lat la put upon them by the prosecutor
Town. Now J am sensible, tliat ^eat
;es are, with gf>of1 reason, made to
in the Ik at of arn^uuient, and when sup-
be ui)i<nut(*d with a laudable zeal for
nits. Nor has it been usucl to correct
r every harsh and hasty expression,
I ihf V kcqi within bounds, and stick to
ell is their duty, without runnin;^ into
that hu\e no reiittion to tlie issuo, and
lirly s< rve the sidi* ilir y espouse. Yet,
rd chancellor N(*lli:ijrham orcusionaliy
iin>el siiould not speak as if they would
t^uilt (d' their clitnts rather than ad-
nr their innoccncy. And since your
s cui H'spondL^t fias clearly evinced,
truth of a libel cannot be frivcn in cvi-
liat It IS no juhtitication, uu the general
id consetpirMilly do pi.'-|)er deCeiiceto a
)f that nature (if ail which Mr. Ilamil-
J not. or ou»hi not to have btrn i^no-
is worthy of ronsidcMatidn whether he
involve huiisilt in his clitut's crime,
rake of hi'j ;^iiih, by declaring in the
t)lic rnanurr, that the facts publi.^hed in
i-papeiH, and contained in the inCorma-
"Q true ; and offcrini^ to (.rove them to
orea rotirt, \^ni('h had rm power to re-
e grievances cuuphkined of, 4 Co. 14.
arthnlomew Shower, I rrmenibcr, in
meut in the cam; of the kin*^ against
ei uL assent!, that *•' in nil cases of
la to a court, ')i> presontrnent is neces-
not Ri» urncli as to convict ; for if (tone
e Cur id, a re<*oid may be mada of it,
A. D. 1735. [750
and a pnnisbment jndiciaTly in-fllcted, and that
executed immediately.*' Show. Rep. 110.
And a<^reeuble hereto, we find, that in a late
case of the king* apiinst Thorog^ood, Trin. 9
Geo. jirimi, the defendant having made an affi-
davit \u C. B. and appearing on summons, con<-
fessed that he made it, and that it was false ;
wheieupon tiie Court recorded his confesKion,
and ordered that he should be taken into cus-
tody and stand in the pillory, &c. which was
executed accordingly the lust day of the term.
Mod. Ca. in Law & £q. 179, 180. This is the
more remarkable, because it was in the Court
of Common-Pleas, which has ordinarily do
jurisdiction in criminal cases. — May it not
from hence be inferred ^I hint it with vl due
sating to all the just privilege of the barj that'
the Court at New- York might well have re-
corded some of the most seditious expressions in
BIr. Hamilton's rhapsody, and committed him
for the same, &c. ? If they had^ 1 doubt the
blame most have centered m himself, and bit
own conduct; of which therefore he might
then haf e had leisure to repent, as well at of
his long journey to so ill a purpose.
But it will not be amiss, perhaps, for ex-
ample sake, to give an instance ot what has
been done on the like occasion iuth that before
us ; and to this end I shall citie a case in the
Court of King*s-bench, many years afW that
of the Star Chambt;r was at an end, and which,
in the words of sir Thomas Raymond, was as
fidloweth : ** Memorandum, June 18, 1680,
iMr. Nathaniel Reading having been convicted
(before justices of Oy^r and Terminer by virtue
of a special c minussion (for endeaTouring to
persuade liedlow, who was a witness against
the noblemen imprisor.ed in the Tower of Lon-
don, to forbear his prosecution of them ; and
he the said Mr. Reading having had judgment
executed upon him, by being set in the pillory,
and fined 1,000/. and imprisoned for the same,
but his fine since pardoned by the king, came
this day into court, and demanded that an io*
formation, which he there brought in his hand,
might be received by Mr. Astrey against the
commissioners who condemned him, of whicb
my brother Jones and brother Dolben were two,
and that the information might be filed. . Rut
the C'ourt did declare, that he was in the wrong
way to exhibit any information in this manner,
and did cause his words, u hereby he did accuse
the two judges of oppression, to be recorded ;
and for iliese words, and for that he was in-
famoqs by having been on the pillory, the gen-
tlemen at ilie bar did pray that his i,own might
be pulled over his ear*, "he having been for-
merly a practiser at the bar, whiih was or-
dered and executed in court ; antl he was also
condemned in court to pay the king tiOOL and
to lie in prison till he paiti it,** Raym. Rpp. 370.
The trial of this gcntleinan referred to here,
may be seen in thi» State Trials, on which occa-
sioii the lord chief- justice North made a speech
aci^ravntiug the detcudai t'f offence as he was a
ri)iii:svl, one who ought to be a man of know-
Ird-^e, and a mioikter of justice to assist the
\
751]
9 GEORGE II.
Trial of John Pder Zenger,
[75
Court wherein be pleaded. He said, he thought
the Court ought to shew a more than ordioary
severity ai^aiost such an ooe ; and that it is a
|rreat credit and benefit to the profession, that
the mem hers of it for such offences should be
dealt with more severely than we should deal
in other cases. Id. p. Sr4, 5. Far be it from
tne to make any invidiuns comparison here be-
twixt the present practiser in Pennsylvania, and
the quondam one in VVestniiuster-hall, tboui^^h j against by Zeoger's counsel, and yet 1 neve
the king and government ; at. That they migh
as well have hanged him at Tyburn as he cam
by, as brought him thither, only to murdc
him with a little more formality. For whicl
tbeCourt gave judgment, that he should pt;
a tine of 500/. stand on the piltory twice, ao!
be of the g(MMl behaviour for a twelvemoutb,'
Skinner's Rep. 124. 1 shall only observe tbi
case was on an information, so much inveigbe
they are both celebrated, the one in the trial of
Mr. Zenger, and the other in his own. It may
however be noted, that the latter was said to be
artful and affectedly eloquent, and to have
strove to lead the jurlgcs out of the way, while
he was told by the chief-justice, that his defence
• was artificial, Itecause it was nothing to the
purpose ; and by another of the judges, that
ne disgraceil his pn>fe$sion by making so weak
a defence. But without adverting to any par-
ticular beauties in the modern performance,
this is certain, that counsellor Reading lost the
bar-gown by his art, and counsellor Ilamihon
got a gold-box of five ounces, with the4reedom
of the city of New- York, by his. A pregnant
instance of the capriciousncss of fate, and of
the justness of your late correspondent's obser-
vation at the entrance to his excellent Remarks !
The gentlemen at the bar (as indeed it might
well be expected from their education, and the
nature of their business) have been remarkable
for observing the regard that is due to all in
authority with the utmost delicacy ; and in re-
turn have always been used with suitable re<^
spect. But that the lawyer of Philadelphia
may see the courts of justice in former ages,
as well as of late years, did not spare the un-
ruly meinbci-s of the profession any more than
others, for much less faulty hrhaviour than that
of the leading counsel in ZongerVs trial, I will
refer him to a case uhicli happened IVIicli. 13
Eliz. Rot. 39, when ITcnry Blaundford, a
coimsellor at law, was cominitted to the Fleet,
and finnl, for falsely reportiijjj: the O|nnion of
the lord LeicvstcT and secretary Cecil with
these wonts, * JIuinaiium est erniro.' And that
even noblemen ujet with the like treatment on
such occasions, will nppiar from the case of
the lord Stourton, who, 19 Hon. 8, was com-
mitted by tlic Court, and fined for saving lliese
words, ** I am sorry to see rhetoric rule where
law shouhl."
Before I proceed, I xvlM mention one case
more, piiveiv lo s!iew how daDjr.Mous it is to
allbrd any unlawiul helps to persons on their
trials in erimjual preKrcutio:i«?, even thoiioh it
Ik» niprel y hy way of privnte ii)strnctioiis, when
such instructions ure to he puhlici v ui.ide n<e of.
and i-.npurr scamhl to the.' covcriiisynt. It is
the case "f tlie King n^ain^•t \i}vva Smith,
Wich. 3.> C:ii. 'J, in B. U. " T!:ii tnm (says
the hook, \» Iiirh Ifjis the all>\v:!iice of all the
i"ndge:») Aar<»n Smith was hrou-^hl into court,
>eing formerly convict eil on a trial at bar, for
delivering to Stephen College, being upon his
trial at Oxford for high -treason, a paper of in-
structions, full of scandalous reflections upon
beard it censured at all, as was that of poo
College, I own, with too good reason.
It is now time to take notice, that there is
amidst a heap of jargon and absurdities, on
obvious mistake, which runs throughout Mi
Hamilton's ostentatious harangue, and that i
in relation to the Court of Star-chaoaber. Hi
would suggest, that because that court wai
abolished by act of parUamcut, on accooot o
some insufferable abuses tliat bad crept into it
all the cases that had been adjudged there, ot
informations for libels, were consequently of m
authority. Whereas the judgments giva
there, in matters properly cognizable MfoR
them, which libelling especially was, are tl-
lowed to be good law at this day, and are cod«
stantly quoted as such in the Court of King*!-
bench. Indeed it is said, that the reason ol
disallowing the Star- Chamber- Court was be-
cause their authority was before, and now is,
in B. R. and consequently that court nnneres-
sary, Comb. 36. So the lord chief justice Hdi
declare<l, that B. R. possessed all the lawfu
power the Star- Chamber hod, Id. 142. Adc
that the Court of Star- Chamber was takei
away, because the crimes were puuibhable here
5 Mod. 4(3-1, which is likewise iutimaled bvth<
statute itself. Now though I am as well sa-
tisfied |»erhaps with the taking away of tlic
Court of Star- Chamber, considering the occa-
sion that had been given, as our northern bar*
rister can possibly be, and should equally re-
joice, I hope, at the redressing any other public
grievance ; yet I cannot, with him, condemu
by the lump, and argue, that because that
court did sotne things aiuiss, therefore it did
nothing right. At this rate, every court that
had, or has a being, may be in danger of the
same epithets he loves *to bestow on that we
are speaking of ; and it may as well be sop-
pose J, that because a certain set of citizciisi
not unknown to Air. llamiilon, lately did i
very silly thing, they therefore never did awisfl
one. For which reason I presume it will not
he altogether impertiiK-nt to produce the senti-
rnents of that oracle of the law, sir Edwanl
Coke, coneerning the Court of Sur-Chamber
** It is (says he) the mo.st honourable court
our parliament excepted, that is in tlie Chris
tiiin world, both in resprr-t lo tiie judges, and o
thei:' honoorMhle procmll'.igs according to thei
just jurisilietion, and the ancient and juf
orders of tlic Court. For the judges of th
same arc, the grandees of the realm, the lor
chancel !o'.*, the lord treasurer, the lord pretl
dent of the king's council, the loni privy sea
all the lords spiritual and umporali andnitlia
753]
Jur a Libel.
A. D. 17S5.
[754
•r the king's most Lonourable priry coudcII, |
aihI the principil judges of the reahn, and sucii '
other lords of parliament as the kin^ sbaJI
name. And they judge upoB coDfession, or
deposition of vritnesscs. And the Court cannot
sit for hearing of causes under the number of
eight at the least. And it is trnly said,
" Curia Camers Stellatse si vetustatem spec-
tenus, est antiquissima, si dignitatem, honora-
tiwoia.*' This court, the right intsitution and
iKieDt orders thereof being observed, doth
kKp all England in ouiet." 4th Inst. p. 64.
dafonnable hereto, a late learned writer, who
na advanced to the highest posts in the law
IB a neighbouring kingdom to that of our
aother country, and wherein he died,, has a
pragraph, which I believe will gire us a truer
aeeoant of the Court itself, and the abolishment
•fit, than what is to be learned from our barris-
kr*s s|ieech at New York, and therefore I will
JMert It here.* " The court of S^tar-chamber,
vbibt kept within due bounds, was certainly of
Am greatest use to preserTc the peace and se-
ority of the kingdom ; and perhaps was tlie
Miy oAort which by its ordinary and proper
jiradiction, could elRectoally prevent and pu-
■iib riots, perjaries, and other misdemeanors of
dw highest nature. But being made use of by
Ihe Court to support proclamations and orders
if iltte, and to vindicate illegal commissions
ttd monopolies, that extension of their power
WcMoe a grievance insupportable, and the na-
lioB wu never easy till that court was entirely
•■ppressed by act of parliament. The House
^Commons were so eager in their zeal to de-
itey what they called a Court of Inquisition,
^though the Bill was of to great conse-
qoeoce, yet they sint it up to the Lords, with
only once reading it, and without its being ever
C'^^itted, which was a thincf, perhaps, never
^ore heard of in parliament.*' Cla. v. 1. 223.
I Deed only add on this head, that Xho. crime
^^libeiling is the same now as it was while tlie
Court of the Star Chamber subsisted, and the
MtQre of the oflence the same then as now ; a
^OM! that must necessarily be punished as
long as there are states and communities esta-
Uitbed in the wurld. And our assuming har-
fitier will not fiud an author that treats of the
<^WD law since the statute of 10 Cha. 1. cap.
lU, lay more than before, hut makes use of the
Cues adjudged in the Star Chamber generally
*igood Uw, and of equal authority in those
putters with such as wore afterwards adjudged
IB the King's- liench. Some indeed are justly
liilile to exception in the foriiior, as wo have
iks known too many in the latter, particularly
daring the next succeeding rc'ifin of (3ha. 2,
Bone whereof are, however, God be praised,
t9 be met with, or lieaid of since the glorious
A Discourse concornin:; Trca^(>n8 and
KUa of Attainder, p. 94, printed ainio 1716,
vrate bjT Mr. West, afterwards Lord Chan-
cellor of Ireland, wbo also tvrute an ingenious
and learned treatise, entitled, An Lupilry into
ibe Manner of creating Peers, lormtr £<IU,
■•~ XVII.
and Iiappy Revolution in 1688, which, I tmst^
has for ever excludeil all partiality and opprea-
sion from Westminster-hall.
But the learned lawyer of Philadelphia de-
clares. That lie has not, in all his readingf,
met with an authority that says we cannot be
admitted to give the truth in evidence upon an
information for a libel. I don't know what
this gentleman's reading may be; but if he
had read some of the cases above- mentioned^
which could not well escape him, it mi^ht rea-
sonably have been expected he would have
taken, warning, been a little more cautiout,
and not have ventured to incur ,the penalties
which others l>efore him had so justly suffered.
By all his reading, he would insinuate, I sup*
pose, that he had read all : and if that was true,
it might well be thought he had read to very
little purpose, who could make so ill an use of
it, or think it a duty on him to go to the ut-
most parts of the land, to propa(;ate doctrinea
and principles diametrically op|K)site to, and
just the reverse of what he must have read.
We shall soon discover that the barrister's
reading is not quite so extensive as he would
have it imagined. But it is previously to he
observed, that if there was no such authority
in terminU as that he calls for, a man who
reads with any tolerable umlerstanding would
of course infer the same thing, when all the
books on the subject of libels lay it down as a
rule, which they unanimously do, that it is not
material whether tlie libel be true or false. For
if that be not material, to what end should the
truth be offered ia evidence? Or, how should
it be rejected before it was offered, which un-
doubtedly is the reason that there have been
no late instances of that sort. It might suffice
therefore to undertake, as often as this well-
read lawyer produced a precedent of its being
demanded from tho bar to give evidence of the
truth of a libel, to shew that it was as often
denied by the Court. And though I admit it
has been attempted before, on trinU for libels of
the less cndrnious kinds, vet he is probably the
only one that has done it in any case within
these hundred years. However, if we would
find an instanrcttf that sort, we must necessa-
rily have recourse to the proceedingn of the
Court uhcre that crime was usually punished.
The Siar-('hamber Reports then may satisfy
Mr. Hamilton, that Term Pasc. 7 Car. 1, there
was the case of Coston, gent, v, Httcham,
Mil. Servient, ad legfem, as follows : ** The
defendant, the morning before be went to the
sessions, being a justice of the peace, received
scandaliMis and libellous articles against the
plaintitr, carried them to the sessions in bis
pocket, and, in open court, in disgrace of the
plaintiff, pulieil them out and said, You shall
see what u lewd iellow this is, and not fit to
speak ill this place ; and then caused the said
libellous articles to be read in the public ses-
sioiifi. And the plaintiff then desiring a copy
of them, and to be tried upon them, the wit-
n«'sf:es to prove them being noted in the mar-
gin, the defendant did not suffer him to have a
SC
755]
9 GEORGE II.
Trial of John Peter Zenger,
[750
copy, or to be tried thereupon, Dor took any | authority to my purpose. Bat it it report ecf,
coui-sethat he mitrht at the next sessions, or at ' as hUotp, in sir Thomas ]^Iallet*s 31S. Treatise
any time after bo questioned for thrm, but j of the Courtof Siar-Chaiitber, a copy wlicreol'
took the articles a{>;ain out of the sessions and has fallen into my hands liy the faTour of a
carried ihem away. And after, further to dis- friend. And since I have naroeil this woH., I
grace thi- tdaintitf in his practice (bein^ an shall, witli his leave, take a paragrapli out of
attorney,) s- nt the saifl articles to Mr. Justice | it, which, I am persuaded, will not be d^tmcd
Harvey, at t!te reference of a cause to him, ^ unsuitable to the present debate, aft ir Ijiuiu^
which < i^tiM attended; and a jury kavini;
fifiven D v( itiict against the defendant, he sent
lor the juntrs nnd questioned them about their
▼erdict, iiiui i-ilii them they were a company of
fooitt, an>i tii.ii if there haid hceu itut one wise
man am'>::<r ilx-m, their verdict bad not been
BO. And (• r li:* se oAenct n ho. was commiitf^d
to the V\''.\ '.iu\ fined QOOl. In thia cause,
the defend i-:t would havt had witnesses to
prove the in.vtif-i' of the said soandalons articles
to be true, but ihnt wasdisallowidby the Court.''
Rush. Col. vol. 3. p. 36, in Append. This, I
presume, the barrister, when jie is serious, will
allow to l>e in point, thouf^h it happened not to
fall in the way of his reading, lie cannot ob-
ject, surely, that it does not appear to be on an
information prelerrrd by tlie Attorney- General,
since it is a much stroncfer case than if it had.
For if the Court would not receive such evi-
dence in a cause depending: on the complaint
of a petty solicitor for Iwing lil>elled, and this
too preferred acfainst a justice of peace, a knig^ht,
and a seijeant at law ; a fortiori, they would .
never admit it on an information exhibited, by
his majesty's attorney gfencral, agfainst a pri-
Tate person, for libelling the tjfovernraent.
Thtre was also, as I hare learned, divers
years Im (ore, viz.- Mich. 2 Jac. the case of
relcr iircn-ton, ilerk, lor writin'^ a scandalous
letter to l.oyd, n'«;isii.r to tlic l»ishop of St.
As«ph, aiul sent to hiIII^c!^, who >> as therein
chari^ed uiiii bribery uiid extortion in his of-
fice; for which libeijons letter tin; dcfendunt
uas sentenced, thenijli, :js the book has it, he
would haie underiiikt II to piovcthe contents
of the lelicr to be true. Ileie then are two
precedents of wliat the banister himself had
that the book seems to he wrote in the time uf
James 1, when the doctrine now revived, and
so tenaciously advanced by Mr. Hamilton, is
said tu have been long before exploded as a
^ross error. " There are," says sir Thomas,
** two ^ross errors crept into the world cnn-
cerning libels ; the one, that it is no lil'tt if
the party put his hand unto it, and the other,
that It is not a libel if it be true ; both which
have been loiii^ since exploded out of this
court. For the first, the cause why the lav
punibheth libels is, for that they tend to raise
the bn*ach of the peace, which may as well be
done, and more easily, when the hand is sob-
scribed, than when it is not. And for tba
other, it hath been ever agfreed, that it is sot
the matter but the manner which is panisbable.
Forlibelhnnr ap^aiiist a common strumpet Is u
great an ofieiice as against an honest womaa,
and perhaps more daugerous to the breach of
the peace ; for, as the woman said, she sbouM
never grieve to t>c told of her red nose, if she
bad not one hideed. Neither is it a grooud
to examine the truth or falshood of a libel, be-
cause it is sub JudicCf whether it be a libel cr
not ; for that takes away subjectum quettionit^
and determiiie<; it to be no libel, by admitting;
the defendant lo prove ilio truth ; and the de-
fendant in that c:ise ctu'y[:\ to plead a jnstifia-
tion auil <lew:nr in Irw. l$iit if he plead N<'l
(iuilty, the e:i"slit»n is pfone, whether it be a
hliel or not." Thus, accordini;' to this author's
opinion, who, if 1 mistake not, was one of the
justices ol' the court of Kinji^^'s- bench in hii
time, Mr. llnmilton, could he really hare per-
suaded himself that the matters chargetl io ti>e
information were not libellous, as he iDsi>ts
never met with all in hisreadin;^; the one in a ! they are not, would have discovered more »c-
case for hbeliiny; u priictisinjj attorney, and the curacy in his profession, as well as cantloiiria
other of ll.e npister of a bishop's court ; but I / his pi notice, by advisini^ his client to demur to
believe I in;iy defy this ;>;ent'.enian, if he were ' it, whereby he would have adniilted no rpore
to read as many inoie yeais as he has done, j tiitn Mhat was avowed at the trial on the ec-
to proiiucc a ihinl, whtie tlieofl'tnce under \ neral issue. Then, indeed, it would have fairlj
prosecutiou, hiiijirof the hi'^hcs't deiiiee, and
evelled at the tiovernment, like that f<»r whirh
he was so /talous an advcate, the counsel f»»r
the diftudant dared u* oiler evidence of the
tivilh of it. On the contrary, if he had dipt
into the lord chief justice Iveelynp's Keports,
fol. <j:>, (betere he left his chiir.ihers) he woulil
have there found it resolve rl I»v the whole
come bil'ore the C(»urt to he considered whe-
ther the papers were lihellons or not, and hf,
as counsel for the defendant, might regulatiy
have been heard to it.
lie would then have been at liberty to exert
his uncommon t.ilc-nts, manifest his extreor-
din.?ry readin;;^ his superior genius and irrett
skill in lan^fiK^iro, and in explaining; iJie trK
court, th;it though a couns^.^llMr ut law may ; import of \7/)rds, wiihout so direcily fi\in2ril
plead his elicn*'.s cause r.u:ainst ihe Uin-^, y«.t, if the f.ico of ev( n aulliorily, and oppti>ipg all
uinkr . olour of that he t:ikes upon hiui lo vent ■ the c?..''e«j that eVtr wcrv. adjudged concerning
sedilian, he is to be punished.
It ib no wonder, iiMhcd, if our barrister
should be unapprized of BniTloirs case, it
not brio;; (at UaM to u\\ kr.owloih^^) in print ;
and \ou perceive I was under no Mecesj»i<v of
tueutioaiug it, be'iug befoie provJ' ^^u
j li'jcls, before he was horn and since. But
alas ! that would nor have answered the inten-
tion of onr r)o(|uent h.irrister. He would uot
then have had it in his power to use his arts,
and play his game with a dozen honest mes,
of as good natural understaudiiigs, perhaps
57]
JvT a LibeU
A. D. 17SS.
[75&
loti^h not of eqnal experience and cunning
ith faimselt*. If he had (fone that way to
'ork, he would have had no chance for the
rize. Vain had been his expedition, and lost,
Dtirely lost, all his labour. In a word, if the
larning and inteffrity of the bar only were re-
oired, he oaight as well have staid at home,
rbere, if I am rightly informed, there are in-
kances in abundance of the blessed effects of
fr. Hamilton's well-known principles.
This sagmcioQS gentleman begs leave to ob-
■rte, that informations for lil^ls is a child.
If Mt bora, yet nursed up and brought to full
Mtority in the Court of Star-Chamber: but
vhat is particularly to be inferred from this
ibrewd observation, he does not at present tell
■I. If the Star- Chamber was the Court where
ciiaiesof this nature were generally punished,
aeeonling to its ordinary and proper jurisdic-
lioa, as it certainly was, how should it be
flthowise- than that informations for libels
mit be met with there P And considering the
■liqoitv of that court, it is more than pro-
WUe the crime was first prosecuted and
pnidicd in it. But what then? Is the legi-
tiuey of the child (if I may be allowed to
cmy on the metaphor) therefore to be called
ii question; or its education the less ho-
BMnble ? I might put our wittv barrister in
siad, that what I have mentioned is the very
RMOD why the spurious brat he is so fond of^
vUch was never brought to full maturity, nor
ever will, first appeared in the Htar- Chamber,
tagb it has not been heard of since in any
«Wr court, till very lately, at New- York ; I
■nihat of making falshood to be essential to
*U, and claiming a right to giire evidence
tftke truth of it by way ofjiistincation.
flemust, however, intend by the foregoing
PiMgr,to impeach the legality of informations
fM toch (which by some words that drop
^ bim many pages after, would seem to be
*Ut be aims "at), or as they relate only to
Adi; and in eitner case be will again betray
Iheseantiness of his reading and knowledge in
^ law. As to informations in general, it has
kci ittcontestibly proved, that this method of
pneeedins is no way contrariant to any funda-
jBeotal rule of law, but agreeable to it. <* That
Avis the constant usage, and had the appro*
taion of the judges and lawyers of all ages,
and in all reigns." Show. Rep. 106, to 125.
M in the case of the inlbrmation against
Kventy poor persons for a riot in pulling down
faces, &c. 2 W. and M. (which probably may
kthe same) it was said by lord chief justice
Bidt, that ** the lord chief justice Hales com-
phioed of the abuse of informations, but not
tkat they were unlawful; ihat he should
1st come now and impeach the judgment of
iB his predecessors ; that the Star Chamber
«ii not set up by the statute of lien. 7, but
Vii as common-law, and informations were
Iteordingly brought in that court and others.
iadthe whole court were of opinion, that in-
ikiiatiuQS lay at common-law." 5 Mod. 463,
< Mow this I take to be as good ao authority
as the. extrajudicial opinions of those anony-
mous great men who, Mr. Hamilton snya,
have boldly asserted that the mmle of prosecu-
tion by information is a national grievance, and
greatly inconsistent wiih the freedom which
the subjects of England enjoy in most other
cases ; nor can one forbear observing, tn
pasiant, that he seems much more disposed,
where there is no danger a( least, to follow the
example of bold, than of wise and judicious
men.
This then being a legal course of proceeding
in criminal cases, and for all public offences, it
must undeni^ly be as proper in the case of
libels as in any other. And sir B. Shower in
reckoning up the several crimes that were cog-
nisable in the court of Star-Chainbcr, includes
libels among the rest, for which he says,
There were always informations in the Star-
Chamber and* King's-bencb. Show. 119. I
am the more free in borrowing what 1 do from
that eminent practiser, on the subject of in-
formations, because he had studied it well, and
taken more than usual pains therein ; and as
the Judgment aflerwarus given by the court
of King's-bench was pursuant thereto, so it
seems to have put a penod in VVeslminster-hall
to all cavils against that mode of prosecution.
If the barrister means notwithstanding to
suggest moreover, Ihat informations for libels
are bot of modern date, or little longer stand-
ing than about the^ time of the expiration of
that court, where he supposes they had their
oriifin, let him be further refuted by the above-
mentioned sir Thomas Mallet, who wrote pro-
fessedly on the court of Star-Chamber, and
may be supposed to be pretty well acquainted
with his subject : he tells us, [Treatise of the
court of Star-Chamber, ubi supra] that ** in
all ages libels have been severely punished in
this court, but most specially when they began
to grow frequent about 49 anil 43 Eliz. when
sir Edward Coke was her attorney general."
And, treating of the antiquity of that ciiurt,
he makes it very probable [Id. 1 Part, 4th
Consid.] that it was the most ancient of any
court of justice! and the mother- court of the
kingdom ; wherein he does n6i differ from sir
Edward himself, in his 4ih Inst. 64, already
quoted. Now it was while this consummate
lawyer, it seems, was attorney- general to the
.renowned queen Eliasabeth, thai informations
for libels began to be most frequent, or, in Mr.
Hamilton's elegant stile, when the child was
brought to full maturity : and it is readily sub-
mitt^ to all who are versed in our history and
constitution, whether that period will be any
disparagement to the offspring.
But if informations for liMs in particnlar,
were one of the grievances of that court, nay
the chief , as the barrister would labour to make
his hearerv believe, how came they to be prac-
tised after the abolishment of it ? Or what will
he say to the case of the king against Darby,
which was an information exhibited against
the defendant, being an attorney of the Com-
mon-Pleas, for delamttory words obI« ' ' '~
W»]
OGEOEIGE n.
Trial of John Peter Zengert
John Kay, a justice of peace, oonoemiD(|r the
exercise oC his office ? The words were, as they
are set forth io Comb. 65. '* Sir John Kay is a
buffle- headed fellow, (a pretty thio^ to be
proved in court !) undervtaads not law, and is
not fit to discourse it withine ; he hath not
done justice to my client.'* There it was arpied
for the defendant on a demurrer, (and I chuse
to recite it because of the concessions of hb
eonosel, against our northern advocate,) " That
an information would not lie for scandalous
wordf spoken only of a particular person, be-
cause he miffht have an action on the case to
recompence nim in damages. — It is true, such
a proceeding might be warranted for libels, or
for dispersing defomatory letters, because by
auch means the public peace might be dis-
turbed, and discords fomented amon^ neigh-
bours, which might at last be a public injury :
but there is no such thing alleged in this case,
only words in common discourse, for which an
action on the case might lie, hut no informa-
tion. On the other side it was insisted, that
this information was founded on sufficient
matter, because the prosecution is not only
as it respects the person of sir John Kay, but
it relates to him as he is a public magistrate,
and who is subordinate to the government, and
therefore such defomatory words are a reproach
to the supreme governor, by whom magis-
trates are intrusted, and from whom they de-
rive their antbority ; and it will not be denied,
but that words reflecting on the public go-
vernment are punisliable at the suit of the
lung by an information. And for this reason
the Court held that an information would lie,
and thereupon t^ave judgment against the de-
fendant, and fmed him an hundred marks."
Cartli. 14, 15.
Mr. liainiltoii, who would seem to be more
knowing than bis neighbours in many things,
aflfects to be more ignonint than every body,
of what constitutes a libel ; and theretore, al-
though he pretends freely to acknowledge
there are such things as libels, vet he insists at
the same time, that what his client is charged
with, is not one; and it' it be not, I will as
freely acknowledge there can be no such thing.
He desires the Attorney General to favour
them with some standard doftuition of a libel,
by which it may be certainly known, whether
a writing be a libel, yea or not. And what is
this for ? W hy, truly, to shorten the dispute.
But what dispute does he s|)eak of .^ The only
point that could admit of dispute had been
^iven up before by his confessing the matters
in issue, and the prosecutor's witncMSCs being
thereupon discharged. As to what he requires,
either there was such a definition to be met with
in the books, or tliere was not ; if there was, he
ought to have known it ; if there was not, why
should he desire Mr. Attorney to favour him
with one ? Yet tdlct he had been indulged be-
yond measure, and a definition was produced
from a good author, who besides refers to se-
▼sral others that are nnqnestioiiablc, all which
•Qochulp agaiiuit bis. cUoit; is this loquacious
advocate contented ? No; there are twt
to that bargain, as he had said bofon
makes it a foundation for further disput
according to his wonted ingenuity and <
throughout his reverie, calls the ooi
sense of our books Mr. Attorney's n
Mr. Attorney's doctrine.
<'But what certain standard rule,'
he, " have the hooks laid down, b3
we can certainly know whether the
are malicious? Whether they are <
tory ? Whether they tend to a breach
peace ? and are a sufficient ground
voke a man, his family or friends
of revenge ?" &c. Now, these quer
thinks do not so well become the mout
advocate, as they might that of kit
when abandoned to his own defence ii
perate cause. But I answer, no ru
tainly can be of use to those who an
mined to act without any, or in oppos
all rules, in which class our northern I
must be placed, if we are to frame a ju
of him from the share he bore in tl
The rule laid down in our hooks cou
libels (1 speak of libels in the strict sen
cording to the definition of Mr. Sei jeac
kins, referred to in the trial, and whic
concerns the present case) is founded
reason of the thing ; and is the sam(
is to be observed in other matters that
upon the construction of words and v
which are signs only, or images of ii
tended to be conveyed to the underslai
the reader. There may, indeed, be dive
applied, according to the circumstance
case; and this, among the rest, thai
words are capable of two senses, t
faulty, the other innocent, the laiter
takeu, provide<l such a construction i
made without violence to their natural
and meaning. From whence it will
that the same cases may happen t
doubtful, and do not come under any s
rule, on all which occasions honest and
judges will intlineto the favourable side
may be others again so clear and evide
a man must resi^^n his reason, or resoU
orifice his conscience, that does not dis
will not allow them to be libellous,
none of thes^e cases can it come proper
a question before the jury, whether a
not, on the plea of Not Guilty, thou(;h i
afterwards be so, before the Court, in s
judgment. By what has been said, th
pears to be latitude enough for a ski
(who notwithstanding must do it at h
to lash public and private vices, to cau
people against measures that may be
to them, or to remonstrate against t
practices even of those in |)Ower, witli
mg always exposed to the peoaltics of I
Such a liberty of writing and printing
doe restrictions, 1 own Englishmen ou|
and 1 hope never will, be deprived o
where this is dexterously done, it w
ridiculous for private persons to put the
761]
faraliUi.
A. D. 17S5.
[76f
L«:
tbcir omi beadi, Mid no kit impolitic for ihoie
io high sutioot to ap|ily e?ery thing to their
idiDiaistnUion. When loch a work is under-
taken b^ able hands, and with a gtnerous fiew
of serviDg the public, il is always Uudable,
tod ofteo f ery useful ; but to succeed herein,
requires a capacity and talents not to be dis-
csfcred in Hr. Zenker's news-papers, or his
dwad's speech.
1 perceife my letter is unawares run to a
gMt length, by the quotations that are inter-
■ystd, and which yet I am sensible is the
hHt exceptionable part of it. I shall therefore
tdtt DotiGc but of one thing more in this roatch-
las harangue, which indeed ought not to be
fNKOt, because it is made the basis and foun-
tomof the wliole; and that is, concerning
tut *« right of freemen to compUin when they
an hurt.*' This our lawyer otWn asserts in
fBMial terms,, with some Tariation only of the
aymsion. As to which, 1 would ask, whether
bf it be means a right to remonstrate and com •
pHB in a legal way, or a right in all cases to
tNcsl to the people by seditious and scandalous
■Ml? if the former, nobody ever denied it,
isd what he said was not ad idem ; so that he
an fighting with the air, and quarrelling with-
' flit la adf ersary : if the latter, he dishonoured
[ bii gown, by advancing what is notoriously
ityapant to all laws, human and dirine. ft
Wniled in the Court of B. R. Triu. 16 Car.
Tbtahhoogh abill be preferred in the 8tar-
Chuaber against a judge for corruption, or
r tiy stfaer for any great misdemeanor, yet if
[ tke plaintiff will tell the effect of his bill in a
tarern, or any open place, and by that means
Kandalize the detiendant, the same is punish •
dile in another court. March, Rep. 76, 77.
f»in the Case of Hole and Meilers, 28 £liz.
inC. B. it was said by the Court, that although
Ibe queen is the head and fountain of justice,
tsd therefore it is lawful for all her subjects to
iHtrt unto her ' ad faciendam Querimoniam ;'
^ if ft Rubiect, after the bill once exhibited,
*iil diviili;c the matter therein coinprehendetl,
li the disgrace and discredit of the person in-
Med, it is ^uod cause of action, 3 IjCou. 138.
M (0 the same purpose, in a much later case,
^. that of Lake and King, reported in many
tfosr books, to which Mr. Serjeant Hawkins
nfer^ it seems agreed, as be obser?es, that
Homr delifers a paper full of reflections on
^/ person, in nature of a petition to a com-
Mlee of parliament, to any other person ex-
flipt the members of parliament, may be pu-
liriied as the publisher of a libel, in renpect of
4ch a dispcr»ing thereof among those who
We nothing to do with it. 1 Hawk. c. 74, § 12.
fiot our forward barrister, age<l and infirm
H ha represents himself (which compared with
kis oottduct, is the keenest satire that could be
^Hfcaced of him), oui^ht to be further in-
ftKted, that even where cumplaiuts are to the
fag hiamelfy they must be made in a proper
regular manner ; a decency is to be ob-
aad a regard always hud to tliecha-
and iUtkNM oi' the pertona against whom
aach eonphints are made. In IS R. S, Rot.
Parliament, N° 45, the Commons desired they
might not be troubled for any matter that
should be contained in petitions to the king ;
and the king answered. Let every man com*
plain, so it be with law and reason. It is law«
ful tlierefore, no doubt, as it has been resolved,
for any subject to petition to the king tor re-
dress, in an humble and modest manner, whera
he finds himself aggrieired by a sentence or
judgnaent; for access to the sorereign must
not oe shut up, in case of the subjects distresses.
But, on the other side, it is not permitted, un*
der colour of a petition and refuge to the king,
to rail upon the judge or his sentence, and to
make himself judge in his own cause, by pre*
judtring it before a re-hearing. Hob. 8W. Yet
sir Rowland Flaxing was committed, and deep*
ly fined, for reporting to the king, that he could
hare no indifferency before the Lords of the
Council, 7 Feb. 18 Hen. 8. So likewise, in
the time of Hen. 7, sir Richard Terrets waa
committed, fined, sent to the pillory, and ad-
judged to lose both his ears, for his slanderous
complaint exhibited to the king, in a written
book, against the chief-justice Fitz Jaroea.
Which Ca!»es are citetl by chief -justice Mon-
tague, in the Case of Wravtiham (who was
severely punished for an offence of the same
nature), as may be seen in this Collection, vol.
2, p. 1059. To these may be added, Jeife'a
Case in the King's- bench, Mich. 5 Cor. Jeflh
was indicted tor exhibiting an infiimous libel,
directed to the king, against sir £dward Coke,
late chief -justice of the Kmg'K- bench, and
against the said court, for a judgment given in
the said court, in the Case of Magdalen- College,
aifirming the said judgment to be treason, and
calling him therelu traitor, perjured judge, and
scandalizincf all the profess(»rKof the law. He
fixed this libel upon the great gate at the eu-
trance of Westminster hall, and in divers other
places ; and being hereupon arraigned, prayed
that counsel mii^lit be assigned him, which was
granted ; and he had them ; but would not be
ruled to p^ead as they advised, but put in a
scandalous plea ; and insisting upon it, affirmed
he would not plead otherwise. Whereupon it
was adjudged he should be committed to the
marshal, and that he should stand u|)on the
pillory at Westminster and Cheapside, with a
.pajier mentioning the offence, and h ith such a
paper be brought to all the courts of West-
minster, and be continued in prison until he
made his submission in every court; and that
he should be bound with sureties to be of good
behaviour during his life, and pay 1,000/. fine
to the king. Cro. Car. 175, 6.
What now shall we say, or what must be
thought of one, who, while he pretends to great
reading, and a thorough knowledge of these
things, could yet, in the face of a court, aud iii
defiance of its authority, and indeed of all au-
thority, presume to jusitify the publication of
the most audacious libels, against that very go«
vernmeut under which he was brestliing thee
sedition ! A penoo, whO| aa a countellor at lait^
767]
1 GEORGE I.
Trial afJofiH Oliphant and otiten.
[768
SODS guilty of the crimes Ij^belled, should incurr
the pains of Proem unire, that thereby the acts
related to the inditemeot, must be underRtood
to be repealled, and this statute of the 6th of
the queen not being lybelled on, tlie lybe) must
fall.
To which it is answered, That the said act of
the 6th of the queen, can ne?er be understood
in any manner to derogat from the laws and
acts of parliament made in Scotland before the
Union, anent leasing making and slanderers,
and far less to the laws of all nations, as well
as of this kingdom, against speeches uttered in
contempt of the government, and licenciously
reflecting upon its proceedings, which directly
tends not only to the disturbiince but uiter dis-
solution thereof, for no new law that is cun-
sistent with laws formerly made, is ever un-
dcrstood to abrogate former laws, unless such
a provision l>e expressly contained therein, and
it can never be alledgrd, that this act of the
sixth of the queen, which properly concerns
only one crime, the direct premeditate wiiful
and malicious denyal of the sovcraign's right,
and a direct asserting of the right of another,
is anywoyes inconsistent with the laws and
acts of parliament upon which the imlitemcnt
is founded, which concern all expressions,
which either directly or by consequence im-
port a contraverting of the .^loveraig'n's title or
the government's legal proceedings, uud mt (end
to the raising jealousies belivixt the govern-
ment and the subject, and to excite the subject
to sedition, and are framed in suidi extensive
terms, as do comprehend most of the crimes
that are committed by word or wryte against
the soveraigne, thfir crown or dignity, or the
peace and quiet of their government, which
appears from the very narrative of the fuurtii
act of the first session of queen Ann's first par-
liament, where the said art narrates, that in
respect of the generality of the saids acts
therein recited, and the various construction
that the same may admilt, tlu^refore the capital
pnniNlimont is altered to an arbitrary one,
which is a plain indication, that the pail lament
looked u|>outhe saidsacts to comprehend many
cases n(»t therein exprest ; and therefore
thought fitt rather to restrict the punishment
than to limit the sense and import thereof, to
the express cases therein contained, so that it
isneedhss to insist furder upon a matter, so
very plain in itself, and what has ever been
held as a principal, that no new act of parlia-
ment derogates from former acts, except where
the last is incon«!istenl with the lormer, or ex-
pressly rescinds it.
It was again alledged for the pannals, that
drinking of the Pretender's heaiih under the
style and title of king James the eight, does
not fall under any of the acts of parliament
anent leasing making, upon which the indite-
ment is founded.
To which it is answereil, That the fact here
charged against the pannells, is not only pu-
nishable though thore were no such acts of
pftrliameyt are ly belled upon, as beiog an af-
front and indignity done to the fp?emment
and standing laws thereof, by asserting the
right and title of the crown, to belong to any
other than the soveraign, then Tesled with tlie
exercise of the government, but this crime m
lybelied will be found without any streacbed
inferences, to be attended witli all the liad con-
sequences that our law has studied so anxiously
to prevent by the foresaid acts, for the fact as
laid in the lyhel, is an express owning of tbe
Pretender as the rightfull king of these realms,
by drinking of his liealth under that title and
designation of king, which is not only declami
by the standing law to be usurped upon to tbe
dishonour of his present luajeslie, his just right
and title which stands upon the same fonodBp
tion with that of her late majestie, but is also a
little inconsistent and incompatible with hii
majesties undoubted right and title to the crowa
of these realms, antl a Tirtual denyal of tin
same, and charging tlie government with uior*
pation and mal-admintsktration of the biffhdt
kind, sfoing the regal power in monarchiil yo-
verniuents, being a jus individuum, if the rigirt
to govern be not in the person of him that bis
the exercise of the same, and the right to suc-
ceed do not justly l>elong to him, upon whom
the same is settled, both the exercise of the
government by the person not justly intituled
thereto, and ihe very deed oi' settlement itself
upon the successor, to witt, his presoot ma-
jestie, oannot be looked upon as any thio^
else but usurpation, and lier late majestie
beiog undoubtedly in the exercise of thersyil
power, the denying of her right to the sane,
or tisserting the said right to be in the penoB
of another, is by a direct consequence to as-
sert, that her majesties government was usur-
pation, unjust, and without any right or title,
which can never he denyed to be a practice tint
rxpi-essly falls under the laws lybelied on, foe
w hat more scandalous and slanderous speech
can be uttered against a soveraign and tbeir
government^ than to tax them with osarpi-
tion, wiiicli is not only to usurp the ri(;lit of
another, hut to assume a power * vi ct frawjc,
which they have no right to over a ite^
people.
u hat can more naturally tend to excite k*
dition and di<%turb the quiet and peace of ^
soveraign and government, than to qoana
and deny their right to the alledgence simI
obedience of their subjects, and the suecessur''
right to the same alledgiance upon the deiaiso
ot that soveraigne, or assert the right to belong
to another, or can there be a more express
setting up and encouraging the false and ssaB-
dalous pretentions of another, to the prejudice
nf the soveraign's just right and title, than by
owning a person attainted by our laws, as kiiUf
and soveraigne of these dominions, and drinkinjf
his health as such, and that even by magi^tntf
and councellors of a burgh, whose oflice it is
not only to suppress and punish such pnc*
tices, but by a dutiful I and loyal behaviour to-
wards their lawful soveraign to cocoura|{t
those under their inspection to a due wib-
for drinking the Pretender^s Health*
A.D. 1715.
[7eff
iou8 preteotions of any person, to
:e of his majestie, his estate, 4ii8 just
lavvful title tu the crown of these
eins^ up thereliy his majesties sub-
likcing, setittion and disobedience to
» just authority, especially when
r any thing tending thereto, is done
ats, and such whose duty it is to
repress such practices, are criroes of
lature and severely punishable : as
e law of God, of this and all other
led realms, the cursing of his ma-
crime of an hainous nature and
nishable ; yet nevertheless the said
lant, Alexander Watson, Mr. Wil-
ly, present baillies of the town of
illiam Lyon younger of Ogill, town
lere, and Mr. Thomas Wilson vint-
dl and each of them, shaking off all
, and re^aird to his majesties laws
ty, and m msfnifest contempt of his
ust right and title to the crown of
Ds, and for advancing and abateing
d scandalous pretentions of the pre-
ce of Wales, \^ ho now styles himself
eat Britain, or king of England by
»f James the third, or king of Scot-
e name of James the eight,* and to
stirr up his majesties subjects to
and sedition, and disobedience to
ies just and lawful authority, did
10th day of June, 1714 years,
&id Pretender's birth day,f go to the
undie, and there the whole persons
ed and each of them, did in a solemn
ink the said Pretender's health,
itie of king James thecitj;ht, thereby
is right to thn style and title of king
alms, in opposition to his majestie
J undoubted riiii^ht thereto,;^ and in
ntomptof his majestic, although the
Oliphunt, Alexander Watson and
im Kumsay wore then councellors
tears in the said hurjjli of Dundie*at
As also, upon thr 20tli of January
t, 1715, the said t\?.y being by his
ro^al procli>mr\!i(»F!, appointed- to be
a day of t|)unks(;:iving for his roa-
:eable accession to tlio thrnn of these
en nomo well affected to his majesties
Qo\ ernmeiit lor a farder evidence and
ion <:f their joy, had caused ring the
e said town after seruion was over,
)hn Oliphaiit present baillie of the
, came to the steeple where the said
' is a story, that in the days of Jaco-
lioister of ili? Kirk of Scotland being
d company called on for a health
^ answered, ** The tougiio ib an un-
•James third, and eighth.'*
vol. 12, n. 123, a report of the Pro-
dative to nis Birth,
le 10th of June, 1714, queen Aiuie
ihe throne ; as is vtated in the pro-
^be died on August 1, in
bells were ringing, and in an insolent and rode
manner, asked at thos^ ringiujg the said bells,
in these words, God damn you, who gave you
orders to ring the bells? and when it was an-*
swered by some, That they were ringing tha
bells in honour of king George, the said John
Oliphant replyed, God damn king George's
blood and yours both, and immediately in a
violent manner stopt all farder ringing of the
said bells. From all which, the said John
Oliphant, Alexander Watson, Mr. William
Ramsay, William Lyon younger of Ogill, and
Mr. Thomas Wilson, wei% all guilty actors art
and part of the forsaid crime of drinking the said
Pretender's health, under the title of kiofl^
James the eight in manner above lybelled.
And the said John Oliphant guilty of cursiocf
his majestie also in manner lybelled. Which
being found proven by the ve([dict of an assyse,
before the lords justice genehd, justice clerk,
and commissioners of justiciary, they and each
of them ought to be punished severely, to the
example and terror of others, to commit the
like in time coming.
Pursuers. — Sir James Stewart^ bis majestiet
solicitor for bis bighness's interest.
Procurators in drfence.'^Sir James Natmith^
JiHr, James Grahame^ Mr. Charles Erskine, Ad-
Tocats.
Informations ordered 28th June 1715.
Information for his Majesties Advo^ • Tor
his highness interest,
AdAINST
John Oliphant, Alexander Watson^ and Mr.
William Raiiisay, present baillies of tha
town of Dundie, William Lyon younger
of Ogill, town thesaurer there, and Mr.
Thomas Wilson vintiner there.
The persons above named Being indited and
accused at the instance of his majesties advocat,
upon the law of this^nd all other well governed
realms, and upon the 4th act of the Ist session
of her majesties queen Anne*s 1st parliament,
anent leasing making and slandering, and the
acts therein recited, ror having upon the 10th
of June 1714 years, gone to the cross of Dun-
dee, and there in a solemn manner, drank the
Pretender's health, under the style and tytle
of king James the eight, in manifest contempt
of the laws and acts above-mentioned, and of
bis majesties lawful right title and authority.
And also the said John Oliphant for having
upon the twentieth of January last, in manifest
contempt of the law of God, the laws of this,
and all other well governed realms, maliciously
and wickedly cursed his majestie king George
by praying God to damn his blood, as if more
particularly contained in the inditement.
It was acknowledged in defence of the pan-
nells. That the first crime lybelled, was not
punishable by any other act, than that made
since the Union in the sixth of queen Anne,
by which act, there being a new punibhment
introduMd for arimi^ of this nature, vix. per-
1
1 GEORGE I
Ttial of John Oliphanl and ot)
nee to fais preaeat migesiieiijiiit aittho-
'e crimeii of a IicIdodb nulure. Aud sub-
liiift, tl)Bt ibe pannells in contempt uf his
KajesireB just tight anil title to the crown, and
far advaociniir Ihe piel«nMoni ortlie pretended
srince of Wulcs, nlio tion' glyles himself Li njr
^Grent nritnin, gr bin; of Scotlanil, by lli«
le of J«meB the eight, onil to stirr up his pre-
It iDiiJeilieisiibjecli to niisUkiiig and ilisohe-
'nce 10 his iiiBJesiies jnst and lawful aulbo-
Kty, did upnn the IO>ii of June oae iboiiMnd
^en biinitred and fimrie^ yaars, at lb« Cross
^Diindie, in a B'llemn maimer, driuk the said
'a hesltli, nnder ihe tille of kinc;
'* Ilie eiElit, thereby a-isertin^ hi>; ri^lil to
'leaml titleaf king nf these realms, mop-
u to his preu^nt inajeBlie I lis cole and un
loubicil riftbt llierelu, and in maDifest cooterupl
'Thit preEcnt mnjesiie.
'll sflbrdi a ijriul prejudice B^iiut lybellsof
■, n'hen the proseculioD is so lone; a
e delnyed, and nhen ihe ioforreieis them-
es fnill 10 appear as parlies. Ifliue xeall
ir Ihe lawful govern meat, bad been the molite
f this detalion. wbat hindered the imiucdiul
0 ? The proof of the alleadged fact,
tioiild certRinly liave been clenr, the more re-
Jfcot the Iryal was ; and the irvTorniKTS will not
Swu, thai (he delay of giving information was
" ideovnur to make the proof elparsr. Nei-
shall the pannells lake up the lords' lime,
^ith exposing the practices has been used to-
arards ibis euU ; they shull content Ihemselres
With denying the ly'Wl, as ihey have already
pdicially done, and proceed to examine llie re-
Vrancy of the samp.
_ Tjie lybt^l se the lords perceive, is laid upon
■ *t)ie statutes touching leasing making, the pu-
^itbinentwhercot' by ourlaw was capital, as it
Jits likewise declared to he in England, in the
Teigne of kin^ Henry the elghi, Anno ^*jmo.
hp. S9. enliluled, " Act concerning the king's
Jtuccessian," but of late our law with respect to
rwie punishment, has receifcd nn alteration be-
y ^t! tlie L'nion, as a|ipears by the statute upou
Kirhich this lybel is founded. And that ibe sub-
',Jccl« of both nations mi^lil be after the Unioa
f (-nnder the same lawn, which concern public
ruht, policy and civil government iu the terras
• M the eigliieeolh aniele of Uie treaty, and tiiat
1 of this nature and the method of jirose-
I sutioi; might be more ascertained, there
Jras an act made in the parliameot uf Great
firilain, anno sexto Annis regime, whereby
*"' 'n acted. That any words spoken againsl the
n, or towards the abnteiog the right or
;e of the pretended prince of Wales, who
TItjIes biuiseir by the title of king James the
1n|;hl of Scotland, must lie malicious and direct.
'Is protided, that no person shall be pro-
in Tcrtoe of that act for any vionls
^krn, unless iuformalion of such words be
n oath wiibin three daves, and the
prnsrciiiiun he nilliin three months alter such
It will not be doubted, bat this Bel super-
Kdt4 all lorner laws in lii^aiid, sjj;*iB«t
crimes aryseiug from words apokwr, W
derous speech, andlhat after the snme panmut
a law, no person cuuM he indicted upoa ny
former acts, where the punishmeDt mlgbl M
more rignrous than that ul t'lemunirc, tDDn(4
to the crimes contained in this act, and if tb
art made in Scotland, restricting the ^ '.
Eunishmeni bad not pasted, it would oertMl
ave appeared very much out of the w»jf,
have bruught a lybell upon Ibe crime tnemti
t'd In the British acl, concluding a capitilftf
nishineni, from ihe said old Sfols acts, AM
Iherefore Ihe ]>annells did plend. rtiat Ihtt M
Ilxh scl of parliament did Tiriuslly abro^Wail
former taws louchiu^ the crimes therein aat
lioned, which miglil have been prerionslj ll
force in either kingdome. For it cniinotbell
learl^eiJ, Ihat the late Scots act toiichiita lesAl
making, if il cnmpr^'hcnds the crim« TybdW
could be preserved from ihis alteration by Ik
latter British statute, upon account that ItM
Iroduccd a more mild punishment, and If da
British statute made an ulleralion of (h«fi»
roer law in eilhcr kingdoroe as to any ,
then cerlainly it altered the whole, particuhdy
with respect to Ihe manner of prosectrf'
Ihal no person shnuld be indited for wordli
ben, unless informalinn of such words be j;
upon oath within three dayes, aiul Ihe ff
cution for audi offence within (hrec moiwIhK
And if it was nthcrnisi', this iuc«fqr "
must fullow, thai ihe subjects of Scotland w
be indited for the same ciime ujran old Soi
laws, and likewise iiiion ihe llrilisb at-t, t ' ~
the sulyects of England contd only be Kfl
iilionthetkct conlaintdin thelybcl.by ll»k
Briiish acl, which cannot be well tUMOMl
It was answered for the pursuer, Thst Ml
obbrogating of a liirmer law, tlierc is nmit
an express clause in the subsequent. ^
9do. That the late British acl staltitfl «rf
unon one crime, and so cannot be undenlaoll
abbro|[nle the law against leasing' maker
slanderers of thesoveraigniWhicFi may h
' ly other ways '
Ihe Uiitish act.
It Is replied. That there
cjuires the alteration uf former Inwa, lo btlg
express words, a contrary practice with II
ahtrogates a former law, by turning k *
desuetude from the implied allcntion of I
legislators will. " Nam quid interest snfit^
populus votuiil3tem Buam duclarct, an ini
ipsis etfactis." And what more eipretfA
clarationoftlieli^iihitors will can bereiiN
for the alteration of a (i>rmer Taw, than to
lute upou the crimes forbid by theM ibr_
laws, and introduce a new punishment M
manner of prosecution, " Non est novnn I
pnsteriores Leges ami priores Irahantnr tM
qua anleriorea Leges aJ posteriores traluitlitn
est : Kl stimper quasi hoc legibus in eiM chA
opportcl, ut ad eaa quoqnc personas et ad M
res pertinent, qiiie quandoqoe similes eniB(i^
1. 20, et 37, ff. de Legibns. fl baie fuOiim
the MS] j
And biiDporli nollliat Icuiiig buIobs I^L
Jot driniing the Pretender^t Health. A. D. 171S.
•Unileriii" or the surenisne may be by several | tlie fact Klielled itoes not ilirrclty fall
tAitvT wonli and ux|irenii(ins, ibm these men- tLeacu labelled upon, hi -' - >
tiooeiiiD Ibclalc xUtiile, nniJ IliBt it is, tliepiir- "" " "" -"---■
tuore bare out contrortTleJ, therufare it Tnl-
Inw*, lliat M to lliiit cri[Qe aaJ exprcssionx
Imn whence it is drawn, ibe Ipi^islative has
■Mile an ulieration, an lo ihe manner of proee-
cutiua, wliivb nut being answered, ihe lybet
an&oi he auiUiiieil.
TtiB arconil (leleiice proponed for Ibe nan-
™
, TUat llie drinLnK llie PreleniUr's
Mtb uaiier the title of king James the eight,
hm nut fall under the description of the act*
■moat leaniai; maLiiig, lur ihia aiaiute 21
AWn (he first, is detineil lu be the infeoling
[ tfniiaoiira belneeo ibe king and the people,
'~~^btke fact labelled on caunollwHild to be;
"" ~ " ippear from Ihe lyhel itself, where
01 laid to he in driiikinK the health,
^ptaaouncing the nnrds, which properly
'^^ l^ao aftirmatian, hut a compellation ;
D only argument that can he
rting tlie lybet, is, that deaig-
^ person by the name of kinK Jamea
■iplies an affirinallon, that Inn
— -^ hasrigbl to the
It the per
'n of thes
^ Bulthen (liifi tsonly by an innuendo
^JileK&oe which ought not to be admitted in
1 lybella, atid Ibta the pursuer* have
I tar aware of, Ibat Ihev neither said io
IkUbel, that Ihe |iDnoellsdiildirectly or tna-
^■Wy or adiyirdly pronounce these ivonls.
VBut further, llie drinkitig of any persDnn
IWtli, utidcr whattuever ilehignallon, can
' hrtt be reckoned the iiiveuling of rumoura
blKMti Ibe king ani) hiK people, nor any false
~-tt lUndcrous aprecli of the soieraigne, be-
lt Uicre if DMhiiig apnkc of llie sovrraigne,
it«f a third |>«rty.
Tie pui-aoers auaivereil that the giving of
kef king 10 nnv nrrsoo im[ilies likewise the
nbg of bin nghl, oiiil that assertion rines
Jtk implvi that the rigbll'ul soieraigne ha>
^tifbl, Uiai) which there cao not he a mure
Mil ruinour and laliu slander tending tu
a, anil alirring up the people to dialyke of
'■ilea ueraoQ and guverument,
nbeJ, T^at crimea are not to be made
'icatiooa, and there ii do crime that is
« hedged infromsireeches and ioDU-
'k crime of leaaiog making, Ihe lery
ieb ibe crimes is lbuiided,cumpUina
r touching Ihe aame have been
~BbM ; Aiul the ilerlarstion of ihe
in^ the Claim of lUgbl, and oOer
.0 king William and queeu ftlary,
ikk down as one of the articles of king
■ lb« Mcenlh hit Ibrfaulluri^, that he
I parions upon slreechea
tand ubaolet la«a, and the puiticulnra sett
■iln Ihu article abewa, that the slreechea
■VMnftltined of concern the laws auai
""- — '^''K. w that if llie words lyhel
Urcct slanilei of Ihe tuveraigne
I invtnling of a false rum<
, no iiuplieutian or innuendo
that the lyhell is alto^elhcr irrelevan
icept, in sn far as it mentions llie fact ti
ommilleil against his uresi^iit mnjeslie, ui:
the prejudice of hia htgiine.
just and lawful title to ibe <
other part of the lybell, it ia said to be ag*inst
his tnajeslies liole and undoubted right, lo iba
crown of these realms ; whereas it appears,
from the lybell itself, that the crime ia said to ba
committed upon the lUth of June, 17U, before
his roajeslies happy accession, and therefore
cannot be said to he con)mitted agaijist hia
■najettie, who at thnt lime had only a presump-
tive right, and consequently not the sole and
undoubted riglit, which includes pottession.
* waaantwi^red lor the pursuer, That tha
o never dits, to that crymes committed
list the crcivru and diguily of ihe cruwn,
ilways punishable; and the crimp lybellM
not being of the nature of a personal injury
to the Miieraign ral^ning, but against the right
with which her majetde was rcsicil, the auc-
MSOT bis present majeslie anil iifiiceia, ara
ell intitled to prosecute the nffeiices.
SJo. It couht nut be doubled, if any perann
should DOW impugn her late inajeslies right, a
Ivhell could be cumpdenlly brnughl, becaus*
the successor! right de|iends upun the prede«
iBora right.
To this the pan nel Is reply, I'hni ihe punueri
mistake I heir uun lyhcl. which does not |)ru'
as ii' the crime were committed against
Ibe queen, but against liis pteaenl inajeiitie.
And iberefore, that ihe crown dyea not, has no
import in this question, which retulves liinjily
ipto this, whither or not words spoken agamst
he late queen, can be said to be against tlio
king? ao as to iufer ibe crime of leasing
making, or the inventing ur Bjneailing of ru-
in against his present majestic, who was
king at the time. For this is tlie tybel,
and upon the resolulion of thi« question, tha
whole lyhel depend*, for certnittly it i« not
leasing making, aa ilelined by our statutes, la
spread rumours or false and sliiuderou* speeches
amongst aubjeclt.
And whereas ilia all edged, that the lyhel
bearf, that the fact wascoiumitled in op]>osilloii
to his majesties title to the crown, ami couse-
quenily lu the Actof Setllement and his majta^
lies succensiun.
But Ibis ia a rery strained inference, and
seems to be cnntrailicled by the lyhel itself,
which mentions his majesties sole and undoubt-
ed tight lo the crown, and consequently couki
netcr he meant ofhis right of sucvessiun wliieli .
ivasouly iHn/ie. And elsewhere it ia said, that
the fact lybelled, does tend to aliennle the af-
fection ol the subject from his waJKties |iersan
and g-i<erninent,wbich ciiulil never bv apply ed
hut lo the BOTGcaignn reigning si comnilliing
Ihe liict. and nui in liis majnuie, whose liajipy
accession was sumo timetbcrratlcr.
Awl Uu.yrtUiiGit 11m ■jftwbtf agaiurt Um ■
775]
1 GEORGE I.
Trial of John Oliphani and oihertf
[778
late qiieeti and gorenitnent now uttered mi§^ht
be puuislieil, is nolliinir to the present purpose,
for tbis their lordshipii aecs is uut the fact laid
io the IvM.
9(lly.* The law is plain as to this point, that
leasini^ uuikin;^ niny l)e by slanderin||f the kin;^
pti^f'uitors, but then, that slandering must be
in the rei^ipne of his mujestte, whose officers
puiAiie. and inu^tnotnrym> from a fncl uUeadg-
cd committed in liie sucredinqf reii;no.
3tio. Thisj nrysos Iruin Uu' disposiition of the
couiiuun law, ~iouL-hiit>^ slanders and injuries,
Hot leusinif iiiakinj||r isi nothing but an injurious,
scandalous uiid slanilerouit speech a^^'jinst the
snverai^ne ; and so is by our lawiers, particn>
Jarly by sir Geor<re Mackenzie, treated under
the title de injuriii: and although the crime
is liig;lily auc^ravatcd by the quality of the
])ei->on asfainst whom it is comuiilted, and
the punisl'.iiiont an::oxed to the crime there-
ftirc mr.de mt.ro severe, yet it still retains
the nature of injurios. And by the common
law it's expressly dcienniijrd. « injurianmi actio
tuque he/e^Ii neqiic in lia'rtMcm datur" L. 13
hoc tit. : and lib. 4, tit. 12, § 5 Institnt. The
emperor, spcakin)^ of rertain crimes says, "Sed
hu^redibns hujus mndi actioni^ competent, ox-
cepta injunaruin actinni*, sed si qua alia similis
invenintiir," wlu*re tlie words, " Et si qua ul'a
jnveniaiiir' arc uell to be noticed, &s pUiinly
^m'n'C'liendiiQr the present pursuit, which
therefore could not have proceeded, even sup-
Iiose the pursuers had lybi'lled the fact to have
lecn conimitted as an otTruce u^ninst the late
queen, which is very obvious they hate not
done, and consequently can never subsum
upon the crime of ioasiii^ making, nor upon no
penalty lyUelled, docs not aryse from the si-
ieadf^ed crime, and so if a capital punishmeBl
had been concluded, or if escheat ol moveabld
and lyiVcnt, f»r if tiuscl of o(hce hud hren 8pe<
cificd to Ih* the cousequeiK^ of the cnme, thi
pannells wrrc cit<'d ti» appear and prepare tbti
defence a«^ain$i the conclusion, which they an
intirely precluded from, by the method whid
the pursuers has followed, which oo^bttob
nicely guarded agfaiost.
For ahlio the leidges are absolutely secor
from streeches, and extending of punishmeal
of crimes under the present constitution, wbci
they have persons of so great leaniinf? and in
tegrity to lie their jndi^^e, yet precedents are 1
be guarded ai^inst for the posterity^ of pnMi
rity, and the subject is not to be deprivnl of tli
last opportunity of defence either against tl<
crime or conclusion therefrom, and the panoel
do oppone the constant cojtnm and prtdiqc
in labelling of criminal inditementa, where tti
particular punislmieni is specitieil in the CM
I elusion, or which is the same thing, that tti
pannells ou^ht to be punished with the pair
of law, ffor then the law w hidi declares th
crime, directs to the particular conclusion, an
the ]>aniiel if he is not prepared to detec
against the conclusiDU, is to blame, and not tl
imrsner; but \ihf re a particular |>ena1ty if er
dea\oured to he addc<l at pleading, or by tt
information, as in this case, the pannel if n
more bound to answer, than if the premisse
of the sylogism or lybel, from whence lii
conclusion is drawn, had liccn general, od«
»t the piu'Kuers li:ul coiuK:»ccndvd on the particu*
I' lar fuit iiifrniiiij the crime at their pleading, o\
iu their informulii'n.
other crir.ics as done in contempt of his ma- The pannti John Oliphant against whom'
jeslie or his royal authority, and while at the : separate criuK! is laiil. does repeal the immul*
tame tymc the ly^el evidi'ucrs his majostie had
not surccfd the time of the fact Ivlnlled.
And that the lyhel is wrongou Jy led in this
respect, appears from the other parts thereof,
MheiP it is said, that the (Vetendor now st\les
himsrlf kii.Lj' of Scoihind, by the name' of
J»mi.'s thi* 8ih, but dors not say, that the said
I'rclt-r.d- r liid thus st\lf himsdf the time of
coiiiinittiiit: the fact, and yet the essence of the
Clime rsc^.iis to be laid in this, that the pannells
are allrailffcd to have given the pretended
Prini-t^ i 1' Wales, tlif s-anio wroncfful designa-
tion, V. hii'h he ii(«sui.:rs to hiinsilf, and thire-
fbre ongla t<> hate Kuhsuiiu-d, that the said
|iicteuil(.d Prince ot Waiis, gave himself these
f:'.\ les. froiu which the criiiie is inlerred, at tl)e
tioif of oomioitiinif of the f.ict lylK'lle<l.
Tlit^ lasi dei't^tioe as to this pfiiiit of the lybel
was, lii::t there is no particular conclusion
ai:aii:vl t!te pannells, that they ou;^ht to be pu-
iiisiicd with this or Ihut prnuliy, which s<'ems
to be as ri'quisite, as it is to specific the fact
from \«hLiJce the couchiAion arysrs, because if
a special couclubion is ly belled, and that con-
clusion not consonant hy the law of the land, to
the fact »!lc:Mlsrcd to infer the conclusion, the
liuDoells have opportunity to dispute the irri-
tNncy of tlie coiichtiioo, antd to shew that the
last dtfi'ocp, vhich was pn»prt*e«l against tb<
whole lybel. and docs not pretend to disputf tlK
roievani'y of the alhad^^id crime, therewith I"
is charged, only il may appear fiom the hbe
ilsrif, ihatiif any such words wt re «poke by bim
which he absolutely denyes, it hks ilbne in «
tumult anil m«>l>b, which he was en<leav«uiini|
toqucll and conipesce. Thecrimeof cnrsinjran*
taking the blessed name of God in vain, iscer*
tainly very h-Mnous and a direct violation ol tlH
moral law, the fountain and standard of allli*
uhatsomevcr, which tho* bv no law of aayni'
tion can never be repealed, yet it may be tinrt'
by. as to the punishments aui^mented or i*'
stricted, accordmi: as the broach of that Iswi
more or lc*ss obnoxious to ci\il government, in
therefore we sre, ti>at in all nations there w
different penalties annexed to the breach c»f t^
seveial articles of the moral law, and oflfrnM
against om* nei^hlmur, even for very small in
juries done to him in his Gfoods, a« in thecfl
of theft, miM'C severely punished than these A
rectly committed against the law-giver, th
soveiaigne 1>ord of all the worM, particoliri
with respect to cur&ing, swearing and bhu
phcming, a<: appears by Charles the 2ml, pirfM
mcnt 1st, session 1st, cap. ll»th,mtHied ChiHi
the Snil, ptrKament Sod, fcstion d4| cqi. 9lH
for drinking iht Pretender's HeuUh*
A. D. 1715.
[778
'kieh the patinel coDcludet, that the
to this article which is relevant, ctnnot
wudu&ioD as to the puninhmcot he fur-
eiidetJ, than the peualties contained in
wa, thouffh the crime ^houkl he proven,
D truth It can never be. In retjiect
\Stc,
SuOscribitur^ James Grahamb.
4M July, 1715.
Iron'
Oliphant, Alexander Watson, and Mr.
llamiayy present baiUies of Dundee:
Lyofiy voun{rer, of O^il, treasurer ;
Thufnas WiUSn^ vintner, there.
ted ami accused Ml in die precedenti.
icr, — Sir James Stewart, his Majestie's
* and Advocate depute.
trators in Defence. — Sir James NaS'
r. Charles Gray, and Mr. James GrO'
drocais.
jords JnMice Clerk, and Commissioiiers
siary, having; considered the lybel at
ince of his inajefttie's advocat for his
k's interest, aj^ainst John Oliphant,
Icr Watjtf>n, and Mr. Williann Ramsay,
baillies of the town of Dundie ; William
ounjs^er, of Ocril, town- treasurer; and
liiam [So MS.] Wilson, vintner, there,
; with the fore)j[oin;jf del>ate thereupon,
id the sairl pannels, all or each of them,
io^ to the Cross of Dund e on the 10th
uwc, 1714 years, and their drinking' the
er's health, by the name of James the
clevant to inrcrr an arbitrary punish-
As also find the said John Oliphant
\ng Uinij Georiye in the terms lybelled,
e 20th day of January last, separatim^
to inferr an arbitrary punishment
the said John Oliphant ; and repell the
fences proponed for the pannells, and
bem and the l^hel as found relevant to
wledLCe of an assize.
uhscrilfitur, Au. Cockburns, I. P. D.
ASSYSE.
im Martin, of Harwood.
illiam Meuzies, of Glaidstains,
• Dewar, of Fullertoun.
:r Murray, of Ilalmyre, younger.
— Warronder, of Lochend.
I Scivwright, of Meirgatland.
nder Clark, of Glundarch.
tm Hart, merchant in Edinburgh.
mcc Anderson, mcrciiant there.
I Louthian, merchant there.
h Reoch, painter there.
nder Burton, glaxier there.
I Johnstoun, merchant there.
bsM Campbell, of Kacken.
t Bull, merchant, in Edinburgh.
dure assyie being all lawfully s^roni,
A^BOti^ of ibe kw in the contrair.
His Majettie's Advocate Depute fw pnibs«
tioD, adtluced the witnesses after deponing, vis,
Thomas Dowie, merchant, in Dundie, aged
twenty-six years, or thereby, maiTied, so-
lemnly sworn, purged of malice, prejudice,
and partial council, examined upon the lybel
and interrogate, depons, That upon tlie lOth
day of June, 1714 years, between eleven and
twelve at night, the deponent did see Aletaoder
Watson and Mr. Thomas Wilson, both panuels^
at the Cross, at Dundie, with glasses with
wine in them, and heard them drink a health
to king Jaoies the Eight ; and after drinking,
saw them throw up their glasses and bottles of
the wine; and that Alexander Wilson, while
drinking the said health, was upoo one of bit
knees, and heard the said two persoos repeal
the words,' Here is to the health of king Jamea
the Eight. Causa scientiis patet ; aad this la
the truth as he shall answer to God.
Sic SukKribiturf Thomas Dowu«
Ad. CocKBuaif.
Alexander Low, merchant, in Doodie, aged
twenty-eight years, or thereby, married, so-
lemnly sworn, purged, and intentMrat ut mpra ;
depones, That upon the 10th of June, 1714*
almut eleven a-c)ock at nig!)t, the deponent
was at the Meroat- cross of Dundie, and saar
there present, John Oliphant, Alex. Watson,
Mr. Vvm. Ramsay, William Lyon, and Mr.
Thomas Wilson, pannels; and did see them
drink a health in glasses of wine, and heard
them name the health, to be the health of king
James the Eight, and did see a bottle of wine
or two thrown in the air, at the place where
the health was drunk, when the same was
named. Causa scientia patct ; and this is the
truth as he shall answer to God. And furder
depons. That he heard every one of the said
five pannells, name the health of king James
the Eight, and saw them drink the samen ;
and this is the truth as he shall answer to God.
Sic Suburibitur, Alex. Low.
GiLB. Euorr.
Wm. Sriiilh, taylor, in Dundie, aged twenty*
nyne years, or thereby, married, solemnljr
sworn, purged of malice, prejudice, and partial
council, examined end interrogate, depones.
That upon the 10th day of June, 1714 years,
about eleven a-clock at night, the deponent
saw John Oliphant, Alexander Watson, Mr.
William Ramsay, Wm. Lyon, and Mr. Thomas
Wilson, pannels, u|K>n the downmost steps of
the Cross of Duadie, and saw them drinking
healths, and several healths were named, and
particularly king James his health ; but does
not know what king James, and does not know
who named the health, nor whither it was
named before or after they had drunk the said
health. Causa scientia patet ; and this is Uia
truth as he shall answer to God.
Sic Subscribilur, Wm. SMrm.
H. Calderwood.
James Miller, weaver, in Dnndie, aged
twaaty yaars4)r4lMniby, iMWUurried, solanuily
^]
1 GEOUGE I
Triai n/John OUphaut a
I, pargcJ of malice, prejudice aotl pnrtial
Minvil, elftinined mil interrogitle ; ilt|iaae9, I
I upon the 30th day oC Jsniiarf lost, rhe
luent bdnir staniliiig al ihe foot of llie
B|*ee|i1e ofDutiilie, m lien ihe (kIIi were ringing
E.flh ouca^iiD of the thanks^iTing lUy. tor tlie
■ ISm;'* scceuion to the throne, llie deiianeDl
1 did ue Jolm Oliphftnl, panoel, at the foot of
I tile sail! Ble«p1e, sail did hear him lay these
[ words, God duiun Wag George his bluud ;
[ «*w<i tcienllft palel ; and ibis is tlie truth as
be ahull answer lo Gud ; and declarn he
Monot write.
Hie SuUcriUlur. J. Hamilton.
Andrcm Barron, serTilor lo Ihe {{laver trade,
in Duadie, ai^d thirty years, or thereby, ma^
ried, solemnly liworn, uurcted and inlerrogat
mttupra; depuna that lia was at the lawn of
Dundie, upon the SOib day of January last,
the day B|>)>ointi'd far TlianksKiring, on ac-
oounl of his mnjeslies BC£«Hiion to tlie throne ;
the which day he the dupnoent was in the
«hurcli yesrdallht time iv lien there wei'eiitlicrs
that wentia lo the steeple and toll the bell,
■ndnhen tie Ihc ilrponent was in the church
jeani, he did see baillie Ollphnut, paonel,
there; ami did hear him say. What did the
people mean by rio^iii^ of the bells? Aud
tliercnpon further sny, ' God damn the king
«nd tbem both ;' and further depons, that
before the lialllie emitted the foresaid cune
•Od exprpEUDii, he heard the people telt hini,
tliat Ihe ringing of the bells was in hooour of
long George his accession to the throne; and
deiKwB, it was at the foot of llie steeple ai ibe
door, that he heard people telt the bnillie, on
wbai occasion the bel^ tvcre rung, and thai it
waaul Ihesuine place lie heard llie liai llie curse
Ibe king as said ia. Causa scieiilia putct ;
■nd this U Ihe trulh as he shall answer lo
Ood. Sic SubscTiiilar, Andiiew BAitaoN,
Ui. Erskwe.
TbeLordsJnitiice; Clerk and CommisHonert
•f Justiciary, ordain the assyse presently to in-
slose, aud lo ri.-turu iticir verdict lu-morrow at
^Iwelre o'clock, and the haill Hi^ceu to be pre-
•cut, each under the pain of 100 inerks,
., Stk July, i71i.
Snlrani'
John OUphnnl, baillie of Dundie.
Aleiiindtr n'at$an, baillie lliere.
JUr. n~i//u'ui liunjiny, baillio, there.
Ifit^tani £,yon,youQg«r, ofOgill, treonircr
there, and
Jlr. T/iomai WiUoH, Yintncr ihare,
ludicledand accused, u( in die priutdtntt.
The said day, the persons ivho past upon
'' te of iliesaidpauuells, relumed tlietr
I presence of the said kntla, whereof
I, Jui'yi, 1715.
I The abate Assyn having enclosed, did
ftaboycc air WUIimb Ueusies of CUidtUiu*
lo be ibeir chancellor and ArcliitaM CmpWRi
their clerk ; aud having considered the lyl>et
at the instance of his miijeaties adrooale lor
his highnesses iulerest auaiiist John Oliphanl,
AlexaiiderWalson,Mr. VVdliamRamiwy, Wtl-
liam Lyon, and Mr. Thomas Wilson, |raiiiieli,
the lards justice clerk and coroinissioDeis
of justiciary their iaterloquitor thereon, aiiil
deposiliuns of the witnesses adduced l>ir ur«f-
ing thereof, ihef all in one roicb find tlw
Ivbdprnven ngainitl Alexander Watson, asi'
lilr. Thomas Wilson, two of the panoels, Ihsir I
drinking king James ibe eight his health, plaiw
day and year of God lybelled. And finds tl'
proven, that John Olipbani, Mr. Williaa
Ramsuy, and William Lyon, the olher tbrca '
panuells did drink king James's ke«mi tba
fiirsaid lime and jdace lybelled ; as also, did ill |
in one voicefGnd the lyliel prnven against Iba'
said John Oliphanl, viz. his cursing kinf j
George in the terms of llie lybel and inleite*
quitur. In witness whereof ihir prcscola art|
subscribed by our said chancellor end ckrk in {
our names place and dale foresaid. ,
Sic SubicrUiiiur, Wm. Mexzies, ChaBC.
A. CtHfaeLi., Clark,
The Lords Ju»tice Clerk aud Commitsiimnt .
of Justiciary delay the consideration of thenid'j
verdict till Monday next al nyne -•-'--'-
12HJu/y, 1T15.
Jirfin Olipliant.
Aleiaiiiter Ifotton, and
Mr. IVn. itnnnoy, bailties ofDuoJ
William l^on, InwD treasurer th«n
Mr. 'i'haaiai Wilton, vintner (here. 2
The Lords Jostioe Clerk and Coaii
of Justiciary, hating coiteidered the
fiSByaer<:lurned U)inn lbs 5th dav of ,
slant, against the said John O^pbaoV
der Watson, Mr. William llamsay,
Lyoii, and Mr. Thomas Ilamsay, pni
They, iu res|)ect thereof by the montb •(
Charles Kin i-OES, mocer of court, deprir«tbt
said John Olipbaui, Alexander "' ""'
Mr. William Ramsuy, of their ut
of Duudie, aud the said William Lyon of
office of treasurer of ihc said burgh, aadlt
dare the said Jubn Olipbant incapaUe of »
joying any public oSice or trust wilhin
said burgh, or wilhin ihsi part nfGrcall
loin call^ Scolland, in all time coming.
declare the said Alexander IValson, and
Thomas Wilson, incajnbie of enjoyioff t^
Kiblic office or trust wilhin theEaid burgba
undie, in all time coming. And also dedi
the said Mr. Wilham Ramisy, and WilKl
Lyon, incapable of enjoying any public ofl
or Irusl within the said burgh, fur the since
three yeara next alter the date heref
ticklykc tha said lords fine and c
the said John Olipbant in the sum of 300 n
8cnls, and the said Alexander Watson, ii
sum uf lOOJ. i^tcots, and the said Mr.Tboa
>VilNii, in the lum of 100 uerk* Scots, n
981]
Tfud ofOeorge Rohertm.
A. D. 1715.
r
thnm^t to be paid to his majesties receirer
general for hik highness use. And ordain the
■id John Oliphant, Alexander Watson, nod
Mr. William liamsay, William Lyon, and Mr.
Thonas Wilson, to he carried to the tolhouth
•T fidiabnrgb, there to remain until the lOlh
4aj of August next inclusivp, and the said John
Obpbant, Alexander Watson, and Mr. Thomas
Winoo, to remain thereafter in ttic said prison
■dl they make payment of their said res|>eG-
liM fines; anu ordain the magistrates of
Edinburgh to sett the persons of the said
William Ramsay and William livon at lib
furth of the said Tolbooth after the said il
and also to sett the persons of the other t
paunels at Hbcrtv, after elapsing of the
day, upon pnxluclng their respective discha
of the said fines ; which is pronounced
doom.
SU Subacribitur, Ad. Cockburn
W. Calderwood, GiLB. Eliot, Ja. !
KENZIES, J. Uamiltun, Da. ERSKn
iSi. The Trial* of Mr. George Robertson, Minister, for i)egl(
ing to pray for the King: 1 Geo hoe I. a. d. 1715. [N
first published from the Records of Justiciary at Edinburj
Cnu JomcuRTS, S. D. N. Regis tenta in
prtttorio burgi do Edinburgh, undecimo
die mensis Julii, millesimo septingente-
siroo decimo quinto, per honorabiles vinis,
Admmum Cockbum de Ormistoun Jus-
ticiariom Clericam, Dominos Gilberturo
Eliot de Uinto, Jacobum Mackenzie dc
Rovstonn, Gulielmum Calderwood de
Poltoo, Magistroa Jacobum Hamilton
de Pancaitland et Davidem Erskine de
Duo, Commissionarios Justiciarij diet.
K. D. N. Regis.
Curia legittime affirmata.
Intran*
Gtorge Robcrisnn, minister of the meeting-
house of Killiechange in the parocbine
of Logiereat.
Indicted and accused at the instance of sir
Datid Dalrymple, of Hailes, baronet, his ma-
joties Adrocate for his highnes's interest, for
berime of not praying for the king.in man-
ner mentioned in tne criminal letters raised
H[aiBst him thercanent. Maketh mention, That
^oereby an act made in the tenth year of his
hie majettie's reigoe, intituled. An Act to pre-
vcatf those of the episcopal communion in that
pcti of Great Britain called Scotland, in the
carase of their religious worship, and in the
vieof the liturgy of the Church of England,
hii enacted. That every minister and preacher
IS well of the Established Church in that part
if Great Britain called Scotland, as those of
As Epiicopal Communion protected and al-
lived by that act, shall at some time during
Ik oercise of divine service in his respective
tkmh, congregation or assembi}', pra^ in ez-
' words fur her must sacred majestic queen
and the most excellent princess Sophia,
and dutchess dowager of Hanover
^ — ,
* See the preceding Case and tlie two fol-
J^VHff Caaei.
t BO in the Record. It should be < protect.'
rjtafft beKtolbre adverted to the strsntre in •
of the Scots Records, which how-
omr 1 hat 0 tbonght it right to retain.
while living, and all the royal family,
their excellencies the lords justices in ooi
in pursuance of the foresaid act, upon th
of August 1714, ordered, that hereafter <
minister or preacher, whether of the Estal
ed Church, or those of the Episcopal Cun
nion, shall in his respective church, congi
tion or assembly, pray in express word
his majestic king George, his ro^al hi(
the Pnnce, and all the royal family. K
theless, the said Mr. George Robertson, '
performing divine publick worship in his i
ing- house at Killiechangie upon Snnda;
5lh of June, 1715 years, neglected and or
to pray in express words for his maiestie
George and his royal highness the Frincc
that in manifest contempt of the said h
pafliaraent, and order of the justices,
notwithstanding he was formerly convic
amerciat by the justice court at Perth in
last circuit for the like offence, fibr whi<
ought again to be punished with the pains c
Pnrnier.— Sir Jamet Stewart his MaJ
Advocate depute and Solicitor.
Procurators in Defence, — Mr. Jamet
hame^ and Mr. George M'Kenzie, Advoca
The lyliel being read, and full v debai
voce, in presence of the said lonls, paniM
assizers, the lords justice clerk and
missionersof justiciary, ordain both part
give in their informations to the clerk of
the pursuer to give in his, betwixi
Wednesday's night next at six a clock, ai
pannel to give in his, betwixt and Fr
night thereafter at six a clock, in ordei
recorded, and continued the dyet of th
cause till Monday next at nyne a clocl
ordain assysers and witnesses to attend
each under the paine of one hundred me
Julif Ulh, 1715.
Information for sir David Dalrym
Hailes his Majesties Advocate,
AGAINST
Mr. Oeorge Boberlion^ minister i
meeting- house at KiUiecbaogie, in the
ofLogierate.
7S3]
1 GEOIIGE I.
Trial of George Robertson,
[7jj|
The said Mr. GeoT|^ Robertson, being in-
dited for omiitin^ to pray for his majeslie king^
George in the terms of the act of the tenth of
berl&ie majostie queen Ann, and the appoint-
ment of tlieir cxtirllencieH the lords jiMtices, the
Itt of August last, as is ut more length con-
oiintaiued in the said intliti'ment, which 67-e-
vitatis cauia is licre held as repeated.
and the next heir to the croirn nominalim^vad
all the royal f'aniily in general.
The proclamation of council imports bo
more than a pointin*; out ti> the subjects die
person of the royal family, that by the death
tff the princess Sophia, was become next heir
to the crown ; so that the proclimation of
council is to ite understood as a direction to
It's needless to tnuible the lords with any ^ those concerned who the |>erson8 are that are
I III 1 #* ■ i ■ I A* *«* * il" a
aitswer to tin* aile<lgaoce made for the pai;nel
anent the form of procedure in the said indite-
ment, as that the said order, or appuinlment of
the justices, was not given out with thp indite-
inent, &c. That haviug been ansvverctl iu !Vlr.
Guthrie's Case now dependin;^, and tiierefore
shall proceed to the other dufcuce^j ior the
ptQiiel, and,
Inio. It was alledgcd, Hnt the act of parlia-
ment of the tenth of qu'c n Anne, nor the pni-
to be prayed for nonunuiim^ in obedience ts
the said act in the tenth of queen Add,
rather than an injunction or command to pray
for them, that standing already aeitleii by tbe
said aet, to whicli obedience was due, under tht
penalties therein contained.
And this suificiently ilhi^trates tbe nature of
the order, or appoiuinienk of tbe lords justices,
and also answers the objections that are mads
against it ; for the said appointment of tht
clamation of the jlIi^licc^t, could nut support justices only directs wh«> the persons are tbat
the relevancy of the indilemtnt, because the I in obedience to the said aet, are to be prayttl
said act only appoints prayers to be made for
ber late maje.-^lie quesn Anne, the princt-ss So-
phia, while litiu'T, and all the rnyul family.
And the appdiutineiit ui' the lords jui>t:4*es
cannot be loukt upon to h» other th::u a re-
commendation to all couri!:-nc'<l, That public k
prayers should be niade for his majestic king
George, but can never be undiTiitoud tti b<.* of
the nature of a law enjoining comjilyancc
therewith under n penally : bc&idcs that no pe-
nalty is contained in the snid |iroclamatiou, or
appointmtnt of the justices.
To this it is auivvcred, Tiiat in regal rd the
soveraigne in law, is undi-rstood never to
die, so all nets of parliament relating to titis
order as sncli. are in pcrprnnal force iind ttfiii.
gation till repealed ; so that the act of the
tenth of the queen, enjoining her ni:jestie to
be prayed fur, retf liids his preseut tnajrstu;
king George, her siict^essnr, us vvdl as her then
majeblie; so that the act is t^liil in force tiil
repealled, iu so tar as rcgatrdi pruycis lor iLe
Boveraigne.
And that is the common sense and nnder-
•tanding of the act, is evident from thi^, that
last year, npoii ih(' death uf the incist e\eellent
princess Sophin, electrpsN] and dntchess dow-
ager of Hanover, the privy eounell of (ireat
Britain did not think any new act of parlia-
ment necessary, (which nnyht have < fisily
been obtained the parliament being then sittinrr)
for continuing ilie force and ohli;>ation of the
fbrsatd aet, hut only by ^a proelaination on-
pointintc his present majestic to b^ prn} ed for
under the title of elector of linmswirl;, tho' ho.
was not nominalim named in the said .let, hut
only comprchen<led under the general 1>>rnieuf
the royal family ; and none nr^ver doubted hut
tbe said appointment of the counril, after the
demise of the said princess Sophia, \ias bindiiitp
upon the whole subjects under the pcnnltics
contained in the forsaid act, as much as ever
the act itself was before the death of the saitl
princess Sophia: ffor, as has been ab(»\e
noticed, the act of parlianient lybelled on, re- because he has not oliserved another pailof lUi
gairdiog prayera to wi made for the sovcraigocy law, which he wan alio obliged to do.
i
ibr, as appears by the order or appoiotmeat of
the justices itself, coppies whereof are hereto
subjtnned. whicli are in tlicse Mords, after
having narruied the claims of the said act uf
nailiauic'Ut appointing prayers to be made for
111 r late majesiio queen Anne, anil the DUHt
e\cellenl princess Sophia, and all tbe rojal
family', then fallows in pursnance of tiiissct,
uhiuh excellencies the loitU justices iu ooudqI
are pleased to order, and ii is hereby oidereil.
That henceCorth, every such minister aod
preacher siiull in his respective church, conjure*
g.ition or assembly, pray in expri*ss words fur
iiis most sacred mi:te>:y kin;;; George, his royil
highness the I'linrcand all theroyal family.
Whereby il i» plain, that the said act wM
nnder''ti:ud by the lords justices to be still in
force ns to all ellecls, sneing their order is
founded upon it, isud expressly declared D be
in pwnnance of it, so that tliis order of tbe
justices is not a new act, but only puttiog ft
former aet in execution, or appuinliiig tbe
manner and orderof observing the same.
It ^\as further alledged for tbe panocli
That the said act of queen Anne, did only eo'
join the observation 1 hereof to the established
ministers of this Church, and such of theqni-
copal clergy as shonlil take the Ivenclite of tht
tolleration granted by the said net : hut so itis«
thit the pannel is not in the terms thereof, he
never having, as that act appoints, prcseotd
his letters of orders to the jnstices of the peace*
and entered the same on lecord by the clerk tf
the said justices, nor obtained licence ftf
enefinga meeting house.
To which it is answered. That this delcMi
mad.^ for the pair.iil is such a metaphtsicri
qiiibl.'le foundecl upon the contempt and negM
of the very law,' from which he can prMcii
any right to preach or exercise any part of tbi
ministerial fiinction, that no regaird can behei
to it, for the very sum of the defence Id othir
words is this, tii'at the pnnnel cannot be pa-
nishcd for not observing one point of tbii iw^i
^ negkding to prdyjor the King,
A. D. 1715.
[78fl
ch reMoning^ can never pais with
of commoo nnderstandbg, much
kirds, who at first sight must dis-
lacy and weakness of such an ar-
»Q the other hand it would be oon-
the pannel, tho he ought not to
\m the bbert^ to preach without
comply ed with what the law re-
irder to entitle him thereto: yet
jjQ^ht fitt to neglect that, it cannot
if he take upon him to preach or
ine publick worship, from not ob-
\ the law enjoins him to do, open
asion, TJzt to pray for his miyestie
•
h a defence could, with any shad-
m be admitted, of what peraidpus
should it be ? And how should
authority of the gOTeniment be
on by erery pretending preacher
'ed upon the raith of and in obe-
I act, to preach without any trouble
ion? And when he is called in
not observing what is therein en-
lls his judges, that be is not obliged
t act, because forsooth he has not
ibe same by embracing the bene-
Ibo* at the same time he has not
iddow of a pretence for exercising
he ministerial function within this
laud, but by virtue of the said act:
defence being meer banture and
» clioaking to every man's judge-
leedless to insist further upon it.
hereof, Sec.
SubscribUur, J A. Stewart.
TioN for Mr. George Robertson
AGAINST
His Majestie's Advocat
kir. George Robertson is conveened
i\ process before the lord justice
ommissioners of justiciary, at the
lis majesties advocate for his bigh-
, lybelling upon an act of parlia-
> Annsp, intituled Act for prevent-
mce to those of the Episcopal
, &c. whereby it is provided, Tnat
?r and preacher, as well of the Es-
lurch as those of the Episcopal
, protected and allowed by that act,
I during the exercise of divine ser-
h respective church, congregation
, pray in express words for her
tie queen Anne, and the princess
II i\}e royal family, and every such
>reacher neglecting so to do, shall
», forlieit for the first ofience the
sterling, and for the second, shall
ose the benefite of ^ this act, and be
apable of ofiiciating as pastor of
al congregation, during the space
ars; as also, lybelling upon an
ilamation of the justices, enjoining
to pray for his moit ezcelkat ma-
II,
i
jeitie and the prince of Wales, and all the royal
fiunily.
Against the rdevancy of this lybel, it wai
allec^icd for the pannel, That he could not be
convicted open tne foroaid act of parliament,
nor incurr the penalties therein mentioned, by
reason that hit majestic king George and the
prince of Wales, were not by the act ordained
to be prayed for, and the panntel prayed for all
the royal family, which is all the act require!
after the demise of the queen, and death of the
princess Sophia.
And as to the prockmstkm of the justices, it
was alledged, primo. That the said proclamation
being no pnUick law, by the form of all cri-
minal tryals, a copy thereof ought to have been
given out to the pannel, or put into the derk'e
hands and refemd to as there in the lybel,
that the pannel might have prepared for his
defence, neither of wliich being done, he wai
not bound to answer.
2do. Although all theanbjects ought to give
obedience to such orders and proclamations of
the justices, or the king and council, yet such
proclamations have not the force of an act of
parliament, as to particular penalties, unless
where some law or act of parliament does an*
tborise such penalties to be inflicted upon the
failzieing to give obedience to such orders and
proclamations of council.
dtio. As the pannel is informed, the procla*
mation of council contains no oertificatioa
against such as shall not observe the same,
that they shall incurr the penalties m the fore-
said act of parliament.
It was anawered by the pursuer, That the act
of the tenth of queen Anne, in so far as con-
cerns the prayers to be made for the soveraigo,
is still in force, and the proclamation .points oui
^only the successor to the crown, who upon hia
accession is to be prayed for in like manner as
the predecessor, expressly named in the act, so
that no new act of parliament was necessair.
And this appears from the proclamation of the
queen and council upon the death of princess
Sophia, whereby his present majesty elector of
Brunswick, was oroained to be prayed for
under that title, though not expressly named
in the act of parliament ; and it was never ques-
tioned but such who contraveened this order of
council were lyablc to the penalties of the act.
But this the lords will perceive, is to assert
and not to answer either from law, reason or
precedent. The act of pariiamcnt annexes the
penalty for not praying for the late queen and
princess Sophia, but neither that law nor any
other, so fares the pannel knows, impowers the
justices to ordain the successor to be prayed for,
under the penalties contained m the law, upon
such as should neglect, neither indeed do the
pursuers alledge, that the pro^nation of the
luilices contains any such oertitMalion, and the
instance given of the former proclamation by
the queen and council Umching the praying
for his majestic, under the Utie of the elertnr
of Brunswick after the death of j^nnerm
Sophia, is nQAbg to lh% f«rvw,>wiV«» "^ ^
>»-
787]
1 GEORGE I.
Trid qfO^rgi
jtaoce ooald likewise be giveD tbit a penoQ
negleciing to pray in the terms of that proda-
nation had been Kkearise convict b^ the sen*
fence of any jadieatory within the united king-
dom, which the parsuer has not alledged upon.
And therefore this defence stands relerant in its
whole heads as proponed^
Thepannel fortner alledged, that hecoold
not be oooTicted npon the stataie l^belted, be-
caose jie was not within the descnptioq of the
■ame, neither being minister of the Established
Church, nor havug tlie benefUe introduoed by
llie adt, in favours of the ministers of the Epis-
copal Cummnnion, and this oeems very evioent
liom the penalty enacted, that the persons con-
' open the hiw should forfeit the benefite
thereof, which of necessity must pre-imply,
that the perty to be convicted was intituled to
the benefite which by the law be was to forfeit
and loose.
To this the pursuers answered, that the
preaching or pertbrming divine worship, wilh-
•nt observing the requisites enjoined by that
law was unUvrfol of itself. And therefore
the (Mnnel could not excuse himself of the neg-
leet in not praying for his mijestie, as tkat law
Bat this is not to argue from the pursuers
lybel, to which the pannel is called to answer,
but to insist on a new lybell, which hitherto hap
not appeared ; and to which therefore the pan-
nel is not bound to answer. The single quee-
lion here is whither a person who Is nether mi-
nister of the Established Church, nor intitlcd to
the benefite of the Act of Toleration, is sul^jeded
to the penalties introduced by that act, only
against such as areministereof the Established
Cnurch, or beine ofthe Episcopal Cummunion,
are intituled to the benefite of performing divine
worship in a meeting-house, and its very ob<
vions trom the simple positioa vnthout further
arguing, that such persons cannot be convict
upon this law, and the pursuera have ly belled
no other. In respect whereof, fcc.
Sk Subtcribitur^ James Grabamb.
Intran*
iSth July, n 15.
Assize.
Mr. George Robertson, minitter ofthe meet-
ing-house at Killichangie, indicted and ac-
^ued ut in die precedenti.
The Lords Justice Clerk, and Commissioners
af Justiciary, havingjoonsidered the lybel at the
instance of his mijesties Advocat for his hi(rh-
ness interest against the said Mr. Geoi^e Ro-
liartsoo, pannel, with the debate thereupon,
they find the said Mr. George Kobertson pan-
nel his neglecting and omitting, when pub-
lickly performing divine worship, to pray in
express terms for his maiestie king George at
the time and place lybelled, relevant to inferr
^arbitrary punishment. And rmeil the haill
Mbneas proponed for the pannell, and remitt
inai and the lybd as found relevant to the
feaowledge of an aanse.
fit AdMTiltor, AD.CQGiMari»LP.D.
William Waddell, merohant in BdaA
Alexander Finlayson, merehfnt tlnra.
Archibald Murray, merohant thereu
John Thomson, merchant there.
Robert Philp, merchant there.
James Hitchelson, jeweller there.
John Tkylor, merchant there.
David Nicoll, merchant there.
George Beech, merchant there.
Robert Willison, merchant there.
John Miller, merchant there*
John Hntton, merchant there.
James Simpson, merchant there.
John Lesley, merchant there.
Patrick GiMon, merchant there.
The above assize being all lawfully
and no objection of the kw in the contn
The Pursuer fbr probation adduced tl
nesses afte deponing, viz.
Alexander Robertson of FaskaRie af
years or tliereby, married, solemnly
purged of malice, prejudice and partial e
examined upon the Ivbell and interrogi
pons that be was at the meeting- booae c
liecbangie upon the Sth day of June last
a Sunday, and did bear Mr. Geoi;ge Rol
the pannel pray in English, and then pn
En^sb, and did not near him pmj^ thi
dnnngthe time of divine service, in c
words for king George. Depons lliai hi
out ofthe meeting-hoase immediately aj
English sermon, the pannel being theret
preach in Irish; and that tliere was no
time betwixt the two sermons than the s
of some verses of a salro, causm scienti^
and this is the truth as he shall answer t
Sic Subscribitur, A. Robekts
Ad. Cockbu
Jumcs SUwart, son to Charles Stev
Balieaehan, aged 30 years or thereby, i
ried, solemnly sworn, pursued, and intcn
ut supra, depones, thai he was presenl
meeting- house at Killiechangie near Ijo{
upon Sunday the 6th day of June, and
Mr. Geurpre Robertson ])dnnel say praj
English tu his cong^gauon that day , bel
English sermon, and did not hear him
said prayer i>ray for king Geoi]^ by iiao
|>annel being to preach in Irish in the
noon, the deponent came away from the
ing-house after the English sermon wai
depons he did not hear the pannel pray i
public person in his prayers before se
and depons, that he heard Mr. Roberlai
quently, and that it was not usual for
pray for the king in his public prayer
sermon, but in bis Irish prayer afier a
he has heard him pray for Idn^ Geei
name. But it was before he received ei
at Perth in May last Causaseiemim
and this is the trulh as shall answer to G
Sk SubterikUstr^ Jambs 8rw
Gob. Buqv
U far negUdiitg to prajf/or tkt King,
Embt R^d, indneller in Logicralr, agetl I
mn or thereby, mBrried, tolemnly
, purged ind iolerrogMe, ui tapra, it-
itlai be *u present nithemeeiiiig-liousc I
HadlAAgM upOD KuDilaj' Hie Stil day oi'
Ut, UM heaid llie p&iinel Mr. George
nan preach and pray that day in tlie «»i(t
g-bouie. And dcpons, lliU he heard the
t. GMrgfl ItobertWD in his prayer, pny
•npnam in aaihority who mm upua the
Itliw, aixf fV all the royal famity ; but
lOl reneoiW that he prajedfaV kin?
■ ty name ; (tejuins, that the saiil lermon
tytt were in IrJEh, and the sard itilne«t
ndentanding the EnyK^li langmge,
idet HoM, itepntj derh, was tworn, that
«U ftithfally interpreie betwrii him and
her witnemea in this procei* and the
«bil ffaould be a«ked and deponed, ai
" *er loGud.
eribitur, Alex. Ros«.
1^ iod waller, in Killiechangie, aged
Dupwartla, mirried, Bolemnlytworni
4 iatero^ale, ul lupra, liy the inter-
feBote-Dntned, depons he waa at the
Ig bmue at Killiechangpie the 5th day of
Im(i and heard the pauoel Mr, Grurge
Mm, preach and pray that day iu Iriah
: uid meeting huute. And deponK lie
him pray for the aiipreani in aiilhorily.
WnNat upun ifae royal Ibron, and tur all
ftl family, hut don not remetnber thut
tyed fur king George by name. Cama
« paltl, and this ia the Iruth as he shall
r to Odd. And dqMni he canoot write.
fp JltbtrititHr, A1.EXANDEK Host,
^"^ W, C*U>Ett1tOOD.
wn, indweller, in Logieraile
r lUerehy, married, solemnly
bd inlerroifato, by the foreaaid
tupra; depont, cunfnrmig pnx-
aiDUs, reddens eandem causnm
' '■ la the truth as he shall i
L aod deiWDB he cannot write.
AI.EXANPER Boas,
J. Hamilton.
19th July, 171S.
A. D. 1715. [790
Indicted acid accused, ul in diepracedtnli.
The |>n»Dn> who past upon the tasize of
le saJd paiinci, returned their verdict in pre-
Dce ot the >«id lord* ffbdwAf du icnor fo^
EoiNBDaaH, Juiy 18, 1715.
Tbe abor^ as^yB^hatiag inclosed, did chovttf
James ^iniMon, cnercliant, their chancellor,
and Robert Fliilp, ffiercbaat, llieif clerk, and
tiariiig considered the lybel at tlie instance of
his lUajeslies advocate for his highnes interest, ,
against Mr. Geor[[e Robertson, panoel, th«
lords juBlir« clerk and conimitsionerB of jui-
ticiary their iulerloquitor Iherean, and depo-
sil'ions of the uilneases adduced ^r proving
thereof, they all in one roice Snd Mr. Geurgs
Robetlson not (o have prayed for his majeitif
king George in express words, but finds it
proven, that he prayed for the topTeam ia
aulbority who stia upon the royal throne, and
for all tlie royal family. In witness whereof '
thir present! are Bubwribed by me, .lamea
ShnpsoD, chanccltoT, andKobert Phitp, clerl^
in our nanies, place and date foreiaid.
Sic SttbKTliitur ■■ '^ f-l— '
35f* July, 1715.
Inlren'
Mr. George Robertion.
The lords justice clerk and Mmminiooertf
ofjuaUdary, having considered the verdict of
aasyse relumed updn the 19th day of Jul^ '
instant, against ih^ said Kr. George RoberU
aoo, pannel, Ihey in respect thereof, by thrf
moutn of Chartes Kinross, rnacer of ooitt^'
decern and ordain the said Mr. George Ro-'
bertson, pannel, tn desist atid cease Ironf
preacbin^ or exercising any part of his nd-
nistcHal tunetion, within the meetirig' bouse ti '
Killiechangie, or within any part ofihe paristfi
of liO^erail, for the space of tbree yeara,
next atler the dste beieof, under the penahy
of 500 merks Seals fbr ea<^ contravention,
by and ailour olKcrrance of this present sen-
tence whicb is pronounced for doom. '
Sic SubKnbilur, Ad. CocKBim>lE.->
CtLi, KuoT, J». Mackenzie, VV. Cai,-
1, J. HAiiti.Tm, I>. EniiUHs. '
T91]
I GEORGE I.
Trial tf Alexander Stewart,
[791
493. The Trial* of Alexander Stewart, for maintaining the Title
of the Pretender : 1 George L a. d. 1715. [Now first pub-
lished from the Records of Justiciary at Edinburgh.]
CuBU JusTiciARu S. D. N. Hegif, Tenta in
praetorio bum de EdinlNirflh, Decimo
Octafo die JueDsis Julij BtinesiuDO Sep-
tiogeutesimo decimo quiuto Per Hono-
rabiles Viros, Adamuin Cockburn de
OrmistouD Justiciaram Clericum, Do-
mioos Gilbertum EHot de Minto, Ja-
cobum M*Kenzie de Royatoun et
Gulielmum Calderwood de ]^lton, Ma-
ffiatroa Jacobuin Hamiltoo de Pancait-
fimd et Dafidem Erskine de Dan Com-
missionarios Justiciary Diet. S. D. N.
Kegis.
Curia legittimeaffirmata.
Intran^
Alexander Stewart^ drover, in the Brae of
Forth, now prisoner in the Tolbooth of Edin-
burgh.
Indicted and accused at the instance of
■ir David Datrymnle of Hailes, baronet, his ma*
jesties advocate ror his highnles interest, for
the crime of asserting the Pretender's title in
manner mentioned m his inditeroent raised
X'nst him thereanent ; making mention, that
re by the laws of this, and of all other well
governed kingdoms, the denying and question-
ing his majesties just and undoubted right and
title to the crown of these realms, and asserting
tlie same to belong to any other, or owning and
affirming the right of any other person to the title
of kin^ of these realms, and designing them as
■uch, m prejudice and contempt of his majesties
foresaid just right and title, and challenging and
threatening his miyesties dutifuU and loyal sub-
jects with hostile and invasive weapons, to deny
and refuse his majesties said just right and title,
and their alledgance to him, and to own the
right and title of king of these realms to belong
to any other person, and to acknowledge ailed-
gTance to him are crimes highly and severely
punishable, more especially, whereas by an act
of the parliament of Great Britain, made in the
6th year of the reign of her late majestic queen
Anne, intituled. An Act fur the security of Iter
majestie's person and government, and of the
succession to the crown of Britain in the Pro-
testant line, it is amongst other things enacted,
that if person or persons, shall maliciously and
directly by preaching, teaching, and advysed
■peaking, declair, maintain, and affirm, that
the pretended prince of Wales, who now styles
himself king of Great Britain, or king of Eng-
land, by the name of James the third, or king
of Scotland by the name of James the eight,
baa any right or title to the crown of these
* See the preceding and foUowiog Caacs.
realms, every such person or penoMy aU
incurr the danger and penalty of PremvaiMy
mentioned in the statute of Premunire aiads
in England in the I6tb vear of the reigac
of Richard the second. Yet iieverthclcaB» ha
the said Alexander Stuart, bhakiogf off attftar
of God, and regaird to his majestiea bwaaU
authority, and in contempt of his just and aa-
doubted right and title to the crown of thos
realma, did on the lOth day of June 171S
yeara, or one or oUier of the day a of the aid
moneth, betwixt the hours of ten and twelve at
night or thereby, a little above the weigh hooM
of Edinburgh, on the high'atreet thereof, goiBj;
before a considerable number of iieople with his
sword drawn hi his hand, floorisuing the saas^
did in a very insolent and insuhing manacr
challenge those you mett with, saying, Whon
are you for, and particularly William Aytoaa
one of the constables of the city of Ediaborgb,
asking him as above mentioned with hia averd
point^ at his breast. Whom are yoa for, ars
you for king James, and adding 1 am for kinf
James, whereupon he was presently appre-
hended, and the day thereafter upon a precog-
nition* of his said crime taken by the msea-
trates of Edinburgh, committed himf to (bflr
prison. From which fa( ts above lybelled, heir
guilty actor art and part of the whole or unear
other of the crimes above mentioned, which
being found proven by the verdict of an affjiie,
before the lords justice general, justice clerk
and commissioners of justiciary, he ought to
be severely punished. And |iarticnlarly is ike
terms of the said statute of Premunire, voofiini
to the act above lybelled, to the example m^
terror of others to commit the like in tins
coming. — Sic Subtcribilury J a. Stewait.
Informations ordered. ■
July J9r*, 1715.
Information for his Majesties Advocate
AUAINST
Alexander Slevart drover in the Brtc of
Forth, now prisoner in the Tolbuoth flf
Edinburgh.
The said Alexander Stewart being iaditcJ
and accused at the instance of his majesty's A^
vocat, fur the denying and questioning his ns*
jesties just and undoubted title to the croai
of these realms, and aasertiog the same to b^
long to the Pn- tender, who takes to himrif
the title of king Jamea the 3d of England ai
Great- Britain, and of king Jamea the eight if
Scotland, and owning and affirming the r%ht
* As to precognition see vol. 10, p. 789.
t So the Record, see p. 709.
r mtintalnitig the Tble nfthe Prttender- A. D. 1715.
«r tlie Mill Pretender thereto. And ptTticu-
iarly, opon the act made in the giaHiainent of
CtiF«t BriuiD ill tlie eili ymr of llie rri)pie uf
ker laleiiiBimlie queen Aiine, entituled An An
(»t Uia security of ber Rnjeities persoo anil
Kovrrainenl, aodof'tlii'successiun tuihe crown
of Briuin in ihe Frutetlttnt line, a* in Ibe said
isditement more Cully contains.
Il was nflered in defence for the >iannel.
IhU in so for as lh« iodittinent n u founded
7Kt tlie said act of parliament, ol' ibe 6lh
queen Anne, the lybel did not subsume in
ik* tpTtns lliereof, in rc^aird tliat tbe nords
•f Ihe act are, that if any person shall inali-
«a(y «nd directly by preacbing, leachioe, or
■M sjieakin^, declair, mainlain and sllirm,
k wards are to he taken jointly, yet the
Milement does not lybel the I'act contained
Ibwein. to be done msficioUBly and advvsedly,
nnr «aD the wards Ijbelled la be spoten by
the pannel, be said to tie a declining, maia-
Wmdi;, and affirming.
To wliich it was Buiwer^, that nliere any
fad Of irorda in themselves, and in the nalure
and propriety tliercuf, imply malice, llie ad-
dMoa ul' that circumslsnce lo a lybel, that
flw came was tnaliciously done, is altogether
npfrflaous, and the norda ol* the act can
inport no more, than a denying of his ma-
jttutt rit;ht and title lo the crown of the«e
rcolmi, or asserting the same (o belong lo ano-
Ihir, wiihadesiifnetudeayaud assert at sfore-
aU,ffor therein consists tbe malice, and cannot
I* «lli*rwise understood, than m a malirinus
ndactinn ngoiosl the soveraig-ne, In say,
Aat he hai so right to govern, or that any
Other thun he has a rik;hl tu u;ntera.
Ho. An tu the words * declare, maintain and
■firm,' the Ivhel ia sufliciently relevant upon
Ibat hcAil, seciiig wboioever owns Bny other
Mnon (bao his present raajestie, as kint; of
Ibcw realms, dot-s expresisly declare, mainlain
tot A01rm, tlinl that perH>n htt the sole right
■iiillille to the crown of tliesc realms, and as
iprt— ly denys, that bis prfsecl majentie has
amy right or tide whatsoever, seeing (he exer-
ciae orthr regal power and riglil thereto cannot
bf separate.
It was furder alleiliced for the pannel, that
the iodicimeut did not proceed in the terms of
the «aid ai't of parljiiiiienl, the said act requir-
ing, that no (lersau should be prosecute for
warila sjuken, unless inrnrmaliun thereof were
in*de upun usth, within three days ajler the
i*onli were emilted.
To which it was answered, that the indile-
WttO- bean expressly that int'iirinatioii was
Ikketi Ihrrror by the magistrates of ICdhiburgh
Ibe very nrxl day after the same hapuenrd,
■pm which tbe pannel was imprianned, and
tiia VK auliicieol to suopori the iodiiement
ia ih* tcrnu of the laid statute, seeing that
AcaelB of parliament of Great Britain,
■)wmyM to tye Understood, lo be fully pxec
«bra uhwrred in such manner as is coi
*ad Mnform to our farms and manner
«idan ia ili« tika oaiw, mkI 14 being
that no information at never to great distance
of time, in mailers criminal, is admiited against
any |>eraon in England, except Ihe same be
given in ujinii oalh, the foresaid clause of th«
act of parhament founded upon cannot he un-
derstood m extend funler, (ban the fixing a
precise short time, within which intbrmaiion
shall be eibihite agaiiitt pei-sons oflending
against the said bc>. Whereby ita plain, that
information being given wiihin Ihe said S|iBce,
in the manner thai onr law prcarrib«s, come*
fully tip to what is reijnired by the said act.
And il were absurd 10 think, that an informa'
lion given in such manner as to be a sntGcieot
ground for iinprisuning ihe offender, shall not
also be sufficient for founding a pTOsecutioa
against him t<>r his otlence.
But further giving, but not granting. Ihtt
Ibe lybel were not reletanlly founded U|iun Ih«
said act of parliament, yet Blill the tact aa
lybblled, is sulEcienlly relevant upon ihe ge-
neral grounda of ihe laws el' this, and all other
well governed realms, lo int'err no arbitrarf
pDnishmenI, and his majesties advocal Ifainka
tlie iiiditement might stand sufficiently rele-
vant upon that foot, ds well as ibe aboTQ
cited act. In respecl whereof, Ste.
Sic Subtcribilur, Ja. Stewabt.
Infdb)utio;< for Alexander SiCKort ^^_
nis Majesiiea Advocate. ^^H
The said Alexander Slewnrt is eonfetl^P
in a criminal process brlore Ihe Liirds of Jd«.
ticiary, at the inalance of his tnajeslies advo-
oaie lybelling on ihe act of parhament of
Great Britain, Sexto Rvginie Anr>r, entituled
An Act Inr the securily of her majesties p«riOIi
and giivemmenl, ftc. Which provided, that
whoever mallcioiiily and dirertly nhall main-
tain and affirm, that he who niiw styles him-
self king of England, by the name of Jainea
ibe third, or king of Scotland by the name
of James Ibe eiglit, haih any nghl or title
M the cmivn, shall incurr the penalty nf
Pnemiinire.
Airainst ihe relevancy iif this indilement ai
foundeil ujmn ihe act nf pnrliamenl, il waa
alledged lor Ihe pannel. that Ihe lyhel doea
nol subsume Tn Ihe terms thereof, ihul the
naniiell did innliciunsly and direclly alfirni, and
by advysed speaking, ili'l iteelHre manlain and
affirm, any penmn's right to ihe i-rown, but
only made use uf the words klnu James, which
mold not tie called a malicious declairiog ths
Pretender's right.
It wiw answered. Tbol ihe words Tvbellei] in
their own nature and prn|iriety, imply malice,
and Iherelore, it was aliogeilier siiperflnnua
to Ivbel that Ihey win'e ; and Ihnt the worda
of lite acl, can import nn more than denying
Ills majesliei right and ilile in Ihe ••ruwo, or
asserting the same to lielong In annllier.
S. Thewords *deeUre,maintainand affirm,'
I need nol expressly be contained in the lybel,
aeeini; wboever owna mj other pctHn'a right
Wj
Ttitl^AIaMMJer Sfaearit
aa Uu of thoa mlmi, exeept hit prcMUt i
will pcrmitl. Tb* tUtulie intradaeca a aei
erim^ and the lepalator being aeuiblF that i
nifht be Ibe rouadatHin of wrenl prtmeea
' ' ■ and trouUci
be mind bj anNuw it, and bh-
ir aay rfiJwable laialdar, «r hf
liffbl and urr, apt to ra£e«iteM
bom itadf aiiher b^ appith fc»
Ibolith lapeodta ai the tonne;
I upon this account fence the act with
aereral exprcaaioaa which McmahMilntelj u^
caawry to SuaaA a erimr upoa it, aa that tbeae
weMb ara not i4le and of ao aignificatioB, but
ia n-det to fhuod Ibe crime meniiooad ia that
act, it 11 necesnry that it iboadd bear, that the
paonel uaed worda that malicioanly and di-
laetly manlaia and aSrai a right to the crown
Idag James doe* not iapoit.
Foe if tba hgblator had meancd anjr audi
thing, it bad been eaay where the atatula men*
liMM tba preiendad Krince of Walei, who now
' rha faimeir king ot Eii|^and, bj the oama
Jamaa the 3d, to bare capreaaij m^e tba
y:
Janaei
be worda of king Jaroea tba 3d, ot kiag
the 8th criminal, bnt tba atolota maana
It Ibe peiaona who deiigoi him-
•df ao bath a right and title, and tfaeretore the
defence atanita rneranl
It was foider cfftred fbr the paimel, that the
Ijrbd doN not bear an informatioD t» bare been
giicD to a juitioe of paace. wiihin three davs
after aach words liaJ bean tpaketi, which tna
act neceiaarily reqiiirei.
To tbia it wai anawered, Ibat the iybti hmn
afracognitioD to baTC Iwen taken by the ma-
gulratoa of EdiDbiirf[b, the day aAer tfae words
were apoke, which ia liiScient, and the acts ^
Great Britain are fully aatiafied, when ritaened
ia Biub a maoncr, aa is consistcDt wilh our
ftrois and matiDer of procedure.
But tbia i« «tjll la lam the act into whAteTsr
ritape the pursuer pleaaea, tba words of the
ataiule are ex^rra and universal binding in
pnrsuita of thia aort, and tba law ia not to be
satisfied in any other maaiier than what ia pre-
acribcd, and tbarsfore a preeogaitioD ia not *uf-
fldent, and it ia carlaio, thai criminal stamiea
nether ongbtDOr can bainsUy extended. And
the raaaon why an infbrraation ia Tequirad,
anetna to ba that tba puniel in me of bis bang
fintnd innocent, may have aceeaa againat the
iolonner fhr Ifaa damnage and expnce of his
aunst proaecution, and therefore aamng the
IvM bear* no information to have been gim,
the defence upon tbia part of the act of parli^
ment aecnu w^ fbooded.
It was like wise -urged for the panne), that at
Ike tiraa lybelled be was aeiaeil with drink,
vhicb saema anfficiaBl U exonlpnta any foeliab
mcpnaaiani he might hare bean guilty of. ll
ie eartaia there ia no -
.tetbedi _
to work upon the mind by dulling it, and Bi4-
iag it iem Bt for any rraiJiuable iSinf' *'
making it too light a
mirtb, which ibows it
tares or nnre loolith r , ^. . ,
and thia it is, which makes lawiers cenider
penoas in drink, under the same ela« with soch
as ua furious; aad lherefi>ra denaodiag Ibe
same degree of corepaaoon and pity. Tti*
Gigas in bia treatise, dc Crimins 'eK* )h>
jeitaliB, aays, " Ebrielaa mealia exilvam io-
dndt, El ubi eat abrieiBs, nbi eat fnnw." Jbd
therefcrc biiagt druakards under tb« si
of tbataw; I4aee. •' De oflkio paw "
aalis forori ipso pnniaatnr." TbM ■
•aonlpation tba pannel hope will be
by their lerdtbipa, Mpedally sine* drmdM
exprcMooa are but lilu the dream* of cUdiw
wilhaat designe and of no import, aad ersr
attended with foHy, bal never with maHee m
dolp,wbicbisthesubetaiiceofancriiBca. A^
Clarus paragrapbb finalt qaaat. 60 nam. II,
cites the exampla of Piaiatnius one of the Eb
moua tyrants of Atbena, who when btsewiMi
inatigaU him to came kiU a drunken maa Im
Eiwaring FSprocbea upon bim, en aooaalsf
ia vuetty, aiitw«red, " non mafia «d M
qn«m si quia oUigatii oecuba m at ae-
eurriaaat." The loBgue is annnndjncabK
[See p. 7651 at any time, ( "-
bard to make everi
io ptwUia Mtd
riMgiMTaf
The lybel only eenc
Begins, there needa no notice to ba lakta off
any thing else cnotained in the iaditement. la
respect wliereof, 3ca.
SU Sitliteribittir, Gsa. MicuKm.
of Jtuticlary, liaving considered the lybel at iba
instance of bia majestiea Advocate for hi* bigb*
nea'a btereat, afaiiut the aaid Aleauder Suf
art pannel, with the tbreeoing debate thoer
upon ; Lbey find the lybel as founded OB iba
act of the 6(hyear of qoeen Anoe, intituled io
Act for security of ber tnajestiea person tad
gofenimeot,siulof the succession to Ibecnxra
of Gren Britain in the Protettaat line, not rd*>
raattoinferrtbepainof Piwmunire mentioHi
in the said act, in respect the lybel dots art
bear the inrormaijon to be taken on oa& in iba
lerma of the said act, but ffinds the panoaf af
the lyme end place lybelled, hit Wing ■
drawn sword in iiis bsDil, and challengbg per*
sons with whom he melt, to declare (or wboov
they were far, sod declairing bimseirtu be Ibr
king Jamea, relevant to inferr an arbitrary po-
ttiahment, and repell the defencea propour^
againat that part uf the lybel fbuml relEvaati
and remitt the pannd and lybel aa found rete*
vant to the knowledge of an sssyee.
iSk SubicribUur, An. Cockbuuhb, I. P. 0>
JttT miAatrntkhf tU TVtfr ^iSf Praender. A. O. 17IS. [TW
rga TbortiDni, impobterer there.
en BrawD, wig-maker there.
I Baillie, bnwar tbere.
ei BeUMD, wrigKt there.
I Chifc, gluier there,
iam Reocb, wright tliere.
id Rnuay, nMrcbani lliere.
rici Bmoe, glazier there.
fc hi^le, wig- maker there.
I ThoDUon, massoD thvre.
■Kw Tatttan, wright dMre.
ni DeoholiD, wrigLt there.
I Botten, weaiar there,
•bore aaeyH having indoHd) anil no
n of the law in the contrair.
HiyMtiea Ad* «cat, Dej>ute and BolicitM-
wtioa, addaecd the witoenea aftw d*-
Grmitt, ■MreliaDt in Edidbargh, aged
t ar tberckj, married, mAttaait awtn,
tttatHm, prqndiM and padial eMuoil^
•d ■poffl the ^bel a«d iMarMnU!, dt-
"hrihadid mb te pannal ilia Bnw aai
rWkd, with adnurn awmd b hia haad,
ioff ittowanb WiUiam AyW'i briMf,
■d him rqiealaCTeraltiiMaatbaaa woida,
an Ton Ibr f but doaa not remembar
di dbat WilHam Ajion aaawend, but
ke pwmel rep);, I am fiir king JaoMa.
Kitntut, he waa Mandiiig at the paandi
the lime, and htmzi and aaw aa ha baa
I, aod thia ia tha tralh aa be aliall an-
Cad.
i SmbleribUur, Johm Gunt,
Ad. Gockbubms,
on At/ton, merehaot id Ediabucgfa,
>urtj yean or Ifaercby, married, ao-
■woni, poi^;ed of malice, prejudice and
council, examined and iiitcrragale, de-
liat upon the lOlh of June lait about
a cUx^ at oi^t, the deponent nir
[et Stewart the paantl wiib a drawn
in his band upon the alreet betbre the
KKiMa, toward the Caatle-bill, with
wv of other penMU behind him, and
aal pomted hi* iwonl Kveral time* to-
be deponent aning. Are yon for him t
a Ibr hhn ? ont dnei not remember
■wertbepannelgnebiraaelfwhen the
It aak«il,whomanooldfaebefor. Cmim
H(ef, and tldait thetrudt aabtfaboaM
fa God.
attwalre a dock, aad Ibo halH fifteen to ha
preacnt, each under tbe pain of loo merki, Uif
MdMin tbe pannd !« ha oaitiad badt to priton.
JW/f SMA, int.
AUtandtr Sumarl, priaoner in ifaa Tolbaoth
ofSdinbnrgh.
Tbanidday, tha parMtna iriia pan apan Iba
a^aa o( Iha nid panaal, rnnraad their ver-
diet in peaaeaae af iha nid lordn, wharaaflba
lanorftlbwa:
EMOtfaoK, t5tA/M^ irid.
Tha abora aanM havthg laeloaatf, mada
chojn of Oobatt Dtfiholma, Wright, toba their
cbawaUw, and John BallHe, brawar, to ba tbdr
hit bigb-
neaaaa utarert, agaiaat AJeunder Stawnrt naa*
■el, the Loida JiiHiea Oaii and Canttib-
rianara of Joaiidvy, Ibcb hitarlbqulUr tbew
npoo, and depoaitlona ofibe wkoamnadihaeA
nr pnning thereof, all in oaa mm flMa
pnren, about the (yme lybelled, that tba pan*
nel bad a drawn aword b hia hand flooMiW
lowardi WilKamAyton'fbKnatiaodAMhitDot
prof en, that he named king Jamea. In wltnaaa
whenof Ihir preaentB areaabacribedl^ amwOi
cbanceHor and clerk u our uanea place and
The lorda Joatice Clatli and CamBi»<
liunen of JuMiciary, in luipm af tba ftra^
(oingTCTdict of aasvn, nnikia'tha pnana^
tnd (HHntM him I'tam-tha bir.
5te JnbtriNfar, A». CocCBVam, 1. P. B.
With RapeU U> tba rflefadan (ne p^ 1^
'dranhntMH in flnenaaita« ofaffntt^ aaa
inthiaConeetlanvo). I5,p.004; andtbaCaa*
of klMlaogMan, aridBg" tfoi of Iha PoHeana
mok — Id p. 7H, I' bwa, M nanal, ui law ini
Aahuinityor thanoardi Upa* loilHag.iMa
Clat«^ I dn vol, ia h>e. dt, Ihnl anyMn
ibaat Vukunaa, "'—^ '- "-'-'— • —
MtoK Oig* d» Cri
btfan«llMn-HNr:
T99]
1 GEORGE I.
Tfbl ofGeddes and Cratofbord.
[800
494. The Trial* of James Geddes and John Crawfoobd (Servants
of Lord Southeskjf) for drinking the Health of the Pretender,
and cursing the King : 1 George I. a. d, 1715. [Now first
published from the Records of Justiciary at Edinburgh.]
Curia Justiciaria, S. D. N. Regit, tenia in
Prettirio Burf^i de Edinburgh, figesimo
quintu die meniiii Jiilij roillfsimo •epttn-
geatetiimo decimo qiiiiito. Per hooorebile*
▼irtM, Adamum Cockbtira de OrmistonD,
Jiisticiaritiiii Clericum DominosGilbertum
Elioi de Minto, Jacobum Mackenzie de
Ri>y»toun et Giilielmuni Calderwood de
Poit'in, ei NagistroH Jacobum Hamil-
ton de Paiicaitland et Davidem Enkine
de Dun Comniisiiionarios Justiciarij Diet.
S. D. N. Regb.
Curia legittime affirmata.
X HE said day anent the criminal letters raised
at the instance of sir David Dalryronle of
Hailes, baronet, his majesties Advocat for his
majesties interest, against James Geddes and
John Crawibord servants to tlje earl of Soutb-
esque— 'makeing mention, That where, by the
laws of this, and all other well governed realms,
the uttering of s|ieeches tending to excite sedi-
tion and afienat the affection of his majesties
person and government, by questioning or de-
nying his n^jeslies just and undoubted right
and title to the crown of these realms, or by
setting up or asserting the right of any other
person thereto, are crimes of a high nature and
severely punishable. As also, that by the law
of God, the laws of this, and all other well go-
verned nations, the curhinc; of his majestie, and
imprecating evils upon him, the cursing and
imprecating evils upon any of his subjects, and
threatening evils to them, for their just and
jutiful owning of, aiid adhering to his un-
doubted right and title to the crown of these
realms. As also, the importuning and pressing
anj of his majesties leidges, to pertake of the
■aid crimes above mentioned, and violently and
cruelly beating, cutting and wounding any
person, when in an dutiful and inoffensive man-
ner admonishing and diswading from the com-
mission of the crimes abo/e mentioned, are
crimes of a high nature, tending to the dis-
quiet and dishonour of all civil and well esta-
blished government, and severely punishable
especially when committed in an open insolent
* See the three preceding Cases.
•f The earl of Southesk took a part in the
reoellion of 1715, for which he was attainted.
He escaped to France, and died there in 17S9.
Bishop Burnet (Own Times, vol. 1, p. 319, 8vo
cd. ori809) relates a curious anecdote concern-
ing king James 3, when duke of York, and an
carl of oouthesk, who I believe was grand-
firther of the torU mtatioiied ia tho text.
and insulting manner in the face of tbeauB«
in publick places of towns, and at the time of
nublick meetings of the people, from iheneigfa-
bonrhood, in manifest contempt and defyaoee
of his majesties laws and authority, to the scan-
dal and reproach of all civil government and
Christian society. Yet neverUieless, the said
James Geddes and John Crawfoord, senrants
to the earl of Southesque, were gailtj acton
art and part of the haill or one or other of the
crimes above mentioned. In so far as, the
said Jolm Crawfoord and James Geddes, did
upon the tenth or one or other of the dayes of
June 1715 years, in the afternoon, <;ometo the
town of Breechine, where many people from
different places were gathered together, upon
occasion of the Trinity fair holden there the
said day, and having called for wine out of the
house of John Knox vintner there to bis doM
head in the public street of the said town, there
and then in the view and hearing^ of many peo-
ple, the said James Geddes ana John Craw-
foord did drink the Pretender's health, onder
the title of king James the eight, and that with
a loud and audible Toice, therd>y setting up
and aaserting the said Pretender's right and
title to the crown of these realms, in manili^
opposition to, and denyal of his majesties just
and undoubted title thereto. As also, the said
James Geddes and John Crawfoord, or either
of them, did imprecate many curses upon bis
migestie king George, the Presbiterians, and ail
the friends and adherents to his majesties jait
right and title, fre<juent]y imprecating^ that
God might damn his majestie, and the devil
might burn him, and they or either of tbcm
prayed, that many evils might befal tbem*
selves, if they or any of them, would not make
collops of the Presbiterians and all his mojestiei
friends and adherents, and make branders of
their ribs to rost their souUs on in hell, asd
would ripe them up, and use them as the da
the swincy and many other such malidous ex-
pressions, attended with horrid oaths curses aoi
threatenings. As also they or either of them
urged and pressed severals to drink the
foresaid Pretender's health, under the title of
king James the eight, publickly tKmsting,
that they would go and drink the said Pi«-
tender's health under the title of king Jamei
the eight, at the Cross of the said burgb,
though they should be hanged for it ; and ac-
cordingly the said James Geddes and John
Crawfoord, did u^ to the Cross of Breechinea
takeing several bottles of wine with them, and
there publickly and before many spectatoiSi
did again renew the drinking of the said Pk««
801]
Cue qfJokn QibioH.
A. D. V7H4
cm
tender^ health, under the title of kinjB^'James
Ihe eight, with repeated ciirses and impreca-
tHMw ajpdnal his nuijestie, and those that adhere
to his lost riffht and title. Thereafter the said
day, the saiil James Geddes and John Craw •
fboni went from the Cross to the bridfi^nd of
Braechine, and Ihett renewed their drinkinjgf of
the said Pretender's health in manner fore-
said, uoder the title of king James the
cight« and when admonished and reproved
far the same hy a hov, called John LsLOimie,
-tSB to Mr. John Lammie of Ijittlefithie,
the Mid James Geddes and John Crawfoonh
di4 cmeliy and in a barbarous manner, beat
the said John Laromie with their hands and
feet And particularly the said James Geddes
did cult and wound him the said John Lammie
ia several places of his body, with a durk or
shaUe to the great effusion of his blood, and
ia OMiiifest danger of his lyfe. And also, the
fud James Geddes with the forsaid weaiion in
bis hand did threaten and won ml some who of-
iH«d.to rescue or interpose in behalf o^' the said
Jabo lismmic, from which facts above-mention-
ed, the said James Geddes and John Crawfoord
or either of them, weregnilty actors, art and part
of all or one or other of the crimes above- nietf*
tioned, which- being found proven by th«
verdict of an assize,' before the lords justice g9»
neral, justice derk and commimioners of jns«
ticiary, the said James Geddes and John
Crawfoord onght to be severely punished, to
the exsmple and terror of others to commit
the like in time coming, and the said James
Geddes and John Crawfoord, being oft and di«
verse times called to hare compeared this day
and place, aa they who were lawfully cHed for
that effect, hwfnl time of day bidden, and they
not enterand nor appearand, the lords jostice
clerk and commissioners of justiciary, oltomm
and adjwige the above named James Gedde*
end John Crawfoord, servants to the earl of
Soutliesque, to be outlaws and fugitives from
his majesties laws, and ordain them to be put
to the horn, and all their moveable goods and
gear, to be escheat and inhroiight to his ma-
jesties use, for their not com|ieBring to under*
ly the law for the crimes al^ive mentioned.
Sic Subtcribitur^
Ad. Cockbuhme, I. P. D»
^i^*
495. Case of the King against Gibbon :* SGeouge II. a. d. 1734,
Upon an Information^ in the Nature of a Quo Wauranto, by the
King's Coroner and Attorney, against the Defendant, to she\^
by what Authority he, claimed to be a Freeman of the Town
and Port of New-Romney, at the Relation of William Jarvis^
Tried at Kent Assizes, held at Maidstone, the 6th of August
1734, before the Right Hon, the Lord Chief Justice Eyre.
Mr. Smith. jVjAY it please ypor lordship,
and yon goitlemen of thu jury ; this is an in-*
ftrmatioo, in the nature of a Uuo Warranto,
against the defendant Gibbon, to shew by what-
authority he claims to .be a freeman of the
town and port of New Romney, in this county :
aod the information sets forth, That the town
wmd port of New Romney is an ancient town
and port ; and that the mayor, jurats, and com-
iBOoatty of the said town and port are, and for
ten years last past, and long before, were, one
bMly corporate and politic, by the name of
■aver, jurats, snd commonalty of the town
and port of New Romney in Kent ; and that
the office of freeman of the said town snd port
M a public office, and an office of great trust and
pveamioeoce within the same town and port,
CMceming the goo<l rule and government of
le, and the administration of public jus-
and that the defen>lant Gibbon, of tliesaid
and port,innhol(ler, on the 35ih of March,
ii the se? enth year of his present majesty, and
Mb tbcnce continually, hitherto, at the town
* Hee Kyd on Corporatious.
VUU XVII. I
and port aforesaid, hath ased and exercised/
without any lawful warrant, the said office, and
claims to be one of the freemen of the sama
town and port, and to have all the privileges,
liberties, and franchises thereof; of which
office the said defendant Gibbon, for all tha
time aforesaid, u|K>n Iim majesty hath nsarpcd,
in contempt of his majesty, and to the great
damage and prejudice of his royal prerogative^
and against his crown and dignity : whereupon
he prays process, &c.
To this the defendant has pleaded, that the
said town and port is an ancient town and
port, and the office of freeman thereof a pnbiie
oflice.
And says. That the late qnren Elizabeth, hy
her letters patent, dated at Northaw, the 4th
of August, in the 5th year of her reign, did wiU
and grant that the barons and inhabitants of the
said town snd port (who before that time had
been incorporated, hy the name of jorats and
commonalty) should Vor ever sfter be one bofly
incorporate, by the name of mayor, jurats, anif
commonalty of the town and port of Neir
Romney*
3F
803] 8 GEORGE U.
And thai tbey, and their socoeitors, and all
other the barons and inhabitants of the said
town and port, their heirs and successors,
should for ever after be, in all matters what*
•rer, as free as the msyor, jurats, and oom-
DM>nalty of the town and port of Sandwich, or
•oy other town and port of her said Cinque
Ports.
And the defendant by his plea further sets
forth a custom in $kmdwich, one of the said
Cinque Ports, that if a man marries the dang-
ler of any freeman of that town, such dau^ufer
beinff born after the swearinff and admission of
her father into the office of freeman, and beings
resiant and inhabiting within the town, has a
right to be sworn and admitted a freeman of
Sandwich.
And alleges the like custom in Dorer, ano-
ther of the Cinque Ports.
And that the sole right of swearing and ad-
mitting freemen of New Romney is, and at the
time of swearing and admitting of him, the
said John Gibbon was, in the mayor and jurats,
or in the mayor and any two jurats.
That the defendant Gibbon, on the Ist of
May, 1727, married Elizabeth Smith, daugh-
terofWilUam Smith, a freeman of the said
town and port ; and thereby, and by virtue of
the said liters patent, became entituled to be
sworn and admitted a freeman of the said town
and port; and bating such right and being
So entitled, was, on the 25th of March last,
fworn and admitted by John Coates, the then
mayor, and Humphrey Wightwick and Ed-
vard Batchelor, then two of the jurats of the
said town and port, being there assembled in
due manner for that purpose ; by reason of
which he says, he is a freeman.
The kin^if replies. That Gibbon, by marrying;
the said Elizabeth Smith, did net become en-
tituled to be sworn and admitted a fWwmon.
To which there is a demurrer, for (he
opinion of the Court upon the words of the
charter.
So that, gentlemen, the first issue you are to
try is, whether the sole right of swearin^r and
admitting freenien of the town and port ol'
New Romney be in the mayor and iurals, or in
the mayor and any two jurats : and if we prove
to you, that the commonalty hare always had
and exercised a eoncurrent right with the
mayor and jurats, you will please, gentlemen, to
find for the king.
Mr. Marth, May it please your lordship, and
you gentlemen of the jory ; i am counsel tur
the f^endant Gibbon. You observe, by the
opening, that this is an information, in the na-
ture of a Quo Warranto, against him, to shew
by what authority he claims to be a freeman
of New Romney: and the only points that
come before you now to be tned, are, first.
Whether the right of swearing and admitting
freenien of this corporation be in the mayor
and jurats, or in tne mayor and two jurats ?
And, secondly, Whether the defendant Gib-
bon has been duly sworn and admitted a
freeman P Ttiore bdog a demorrer as to
Case of John Gihbmt
[sai
the right, that is to be determined by the
judges of the court of King V bench: and in
order to make out this right, we shall produoa
to you the books of the corporation, as wcH as
livm^ wimesses ; whereby it will appear, tbat
the right of swearing and admitting fireemtn of
this corporation is in the mayor and jurats, or
in the mayor and two jurats ; anil tibat every
one of the present members of the eorporation
was sworn and admitted by the mayor and jo-
rats, or the mayor and two jurats : and by an
entry in the same books it will likewise appear,
the defendant was duly sworn and admitted a
freeman ; and when this appears, genthsmcD,
you will find a verdict for the defendant.
Mr. Lacy, Mr. Wellard, please to prodoea
the corporation books. ( W bich were prodooed
aocordiugly.)
Soij. Darnell. My lord, we insist, the sole
ri^ht of admitting and swearing freemen of
this cori)oration is not in the mayor and jurtti,
but in the may or, jurats, and commonalty.
L. C. J. Eyrt. It is swearing and admhtiiig.
Serj. DarndL Gibbon being called on 1^
the court of King's-bench, to shew by what
authority he claimed to be a freeman of the
town and port of New Romney, has deeswradi
and ihereny waived the foundation of his
claim.
X. C. J. What ! Is that waiving it ? Wbit
concerned his right comes not now in issor,
and was left undetermined by the Court. K
he had a right, the question is. Whether be be
duly admitled f And in order to that, he must
be elected : And then the question is. Whether
he be admitted according to the constitotioQi
of the town and port of New Ronm^ P
Serj. Darnell. My lord, a right is here
claimed by the defendant ; I have a right bj
marrying a freemau's daughter ; and if 1 btie
a ri^iit, the question is, as to the method of
coming to this right. The defendant says, tbe
sole right of swearing is in the mayor lod
jurats : But we say, though they have a right,
the whole body must admit, though the sweir-
i ing be by the mayor and jurats.
I L. C'J, Swearing and admitting is the Sims
thing, brother Darnell. Where a man is choKB
mayor of a corporation, the swearing and ad-
mitting him is the same thing. All penotf
are admitted by swearing, and taking the osib
is the admission. A man admitted is to bs
sworn c and there is no corporation in the kioff^
dom, but where swearing and admitting istla
same thing ; and yet you would make thea
two distinct acts.
Mr. Lacy. We shall prove to your lordsUp
and the jury, that the sole right of sweariag
and admitting is in the mayor and jurats: saa
the first instance we shall shew is in 1679i
Peter Martin was ailmitted and sworn by tbe
mayor and jurats. — ilead the entry of the 8th
of March, 1679.
Witness sworn to prove an Assembly -book.
L. C. J. I thuik it proper to be read aia
Court-book.
■ upon a Quo Warranto.
ivfi8. 1670. Romncy. Ala
f of the najnr, jiinila, and coiDuionalty
>iro ind port <>r Me» - Itomucj, in ibe
I plmce litrlil there. -^1 Car. i, Prnetit,
ant, mayat; Tliomnii Uurraut. Jnlin
, Juha Cockmao, William Grern, nuil
IG RulloD. Ireemcn ol' tlie saiil town ,
lanln ail inliabitani iiC niir mamher ol'
I, in Old Uomntiy, wu elected a Irea-
■nd this asiembly dotli appuint him tc
II ■ rreenian liy ilic niajur and any
itiof this cor])oralion."
/. Peler Martin ejccteil aud gnora,
t, 1C79.
IfartA. Now (e*J bis admiulun and
I-
iotc reads:
^ cuurt tiolden Wore John Hiiot, the
and junta uf Mme purl, 16 Marcb,
>eter Martiii tealilied hi« IVee cooaeDl
!ty\D\f the orders, churleis, and oi'Jl-
Sec. of tlic Cinque Pods, aiid of tbia
particular; anil is hereby UeclaJeU
niited a rreeman of ibis oorporalion;
t the oaths appoiDled."
irBamney. Whereas iheroayar.iurats,
inoDally ul' the iu« ti and poti nt New
t afortsaid, at their roininon araembly,
in the comiDOD place of the said town
t, dill elect and ehoose Mr. Stephen
tting free-born; TboiuaB Short, bora
elli in the cnualy of Keol; Kuberl
bnrn at Bailie iu ilieciunly of Sussex;
0 CoalL'S, ifrazier ; all fiee-hura, lo he
of the iiiA lotvD and jratt, the IStli
Hay lui : Now be ii retnembered, thai
irt «l record bulileu in the Oiiildhnll
Uoe town ami port,,lhis.3d day nf De>
, Addo Doitiini 1604, the said Stephen
'homu Short, Robert Easton, aiid johu
teslifyin|r tiieir free consents for the
V aoii niauUaiDin^ the charleis, fraii-
iMreoi, pritilc«[ea, customs, and usages
[linqTHs Porta, two anfieni towns, and
Knlwrs, and |Hitticutarly of this luitn
«f New Uuniuey, buie severally taken
l» of trcenieii of the same (own and
itrding to the cuslomal Ibtre, anil are
1 inlu the I'raocblses of the lowo and
pMid ; anil did alsii, at the aame lime,
n tb« aeteral oaths apiminted by an
wrliBmenl, intituled. An Act for abro-
Iw Ostlii of Alletiiaace and Supremacy
iMBtiog othsr Oaths," dec.
'iarih. Read iheeutry, fol. 770.
■• Rumoey. Atacuurt uf record, bolden
jtulJhall of the siuit- lowu and port,
I of Ala), 1093. Wherras the mavnr,
n place, on Thuraday the
A. D. 17M. [SOS
17lh orHarch, 1697, did elect Roben Mascal),
free-burn, Thorais Lancaster, sod Tboroaa
Edwards, free-horn ; having leiliQed their
free consents lo observe the ancient ord^ra,
chai'trrs, ordinances, Ut. were then admitted
into the freedom of the said town : He it ro-
iiirtuhered, that the said Robert Mascal^
Thomas Lancaster, ami TIiuoibs Edward*,
haiintf lenifled their free consents to obaerre i
the orilers, Sec. albiesaid, have tabeu the oath,
according lo the cuatomal, and are sdmitled
iulo Ihe irancbiBea of Ihe town and port nfore-
*aid, and took the sereral oatha appoiuteil."
h. C. J. k coart or record, and this conit '
held before the mayor and jurats.
Air. Martfi. My lord, there is
member nf tlie^mrporation bul is s
manner.
Seg. D(jrn«;/. We admit, iDy lord, thai 00 '
tnanca.li he sworn but by the mayor and Jurats j
but none hut freenien can consent there shall
tic freemen among them.
L. C. J. If the precedents are admitted by
ibe other side, there is no occasion for pro*in|[
Mr. MortA. My lord, if they adraitthem ac-
cording to the last entry, there is no o
but if not, it is necessary lo cs" '
L. C. J. It is all one to me what you do,
It is ailmilled on all aides, there are many of
these entries since i679.
Mr. MiirtA, Read the admiseion of Isats
Ruttun and others, 7 February, 170S.
AaociaU reads ;
>■ New Romney. At acourtof record hi
in the Guildhall of the same town and port)
the Ttl> of February, 1703. Whereas tbt
mayor andjurals, at a common assembly, elect"
ed the seferal persons following ■ Be it renieii
bered, the persona under-written, le^iifyinj
their consents to observe the andent orders,
he. have taken Ibe oaths of freemen, and at*
admitted iulo the freedoms."
h. C. J. Who are the people admitted 7
Auocinte reads :
" Isaac Rutton, John Bassell, John Mionil,
John Tooke."
Aaixiote reads :
" jKiie 13, 1715. Whereas the Diayor and
jurats did elect Nichnlai Dumnt, Isaac War-
ren. Daniel Wartjuin, and John Cosby, lo be
freemen: Be it remembernl, that they, testify
ing their ciinseot lo ubsetve the aocieut ordcrsi
&c. are admitted into the frenluuia uf this tnwn
and |>url, Hod took the several oaths sppiii
and sulncfibed the declaration lollowing,"
Auociatt reads:
"August -iO. 1717. Whereas the mayor and
jar«tB,utbelsiatiMmixwiiaaaeniUy, did elMt J
807j 8 GEORGE II.
the trrenl pmani, whow namci >ic hereunto
■abwritird, la be freemm: Be it miMinb««l,
Ihu 36tb of Aiiuutl, 1717, itw [mtmiu andcr-
writl<>n, leitLlyin|> their coHMnt to ubserre the
■ncieat order*, fitc. anH t»kiag tlie oatbi, nre
■flniitled ioLa the freedoma o? thin town and
port. " John Widcohb,
' '' RiCUlRI) HowitRP."
Aaocinlcreaif:
" NoTcmbErlO, _, _.
JDret«, nnd coramnnally elected Thi
WD, williiu thiM tuwu, lu Ite a freeman : He it
reaiemlwred, that he, tertifying hiii con«ent to
nbierre the uocirnl onlers, Ike. anil ttking the
oath, ii adoiitled into the frcedoma of Ifaia town
and port,
" Born at Lydd in Kent."
Mr. Lacjf. Now rend the admiision of Wil-
liam Gray, the 7th of June, 1731.
" Jupe 7, 1731. Whereat the mayor and
jurBl*, at the laal election of mayor, diil admit
WilKam Gray, a freeman : Be it remembered,
lliat he, teMilyioff Ilia conannl to obserre tbe
ancient orders, kc. hai lakrn tbe oalh, and ia
admitted into the freedoma of this town and
p"-"
Hr. Marsh, My lord, we lufamit onr cue
berr.
Seij. Darneli. Ttie word < admitted' is ined
both at the cunimon aiiemhiy
£. C. J. But only tliere in that inslance,
Seij. Dararll. May it pleaae yoiir lordship,
and yo J (rentlenneu of the Jury ; I am for the
king Bt^iott Gibboo : and llii* iisue ia only a
part of a question in relaiion to tlie franchiaea
and privllet,'es of the town and port of New
Jtonaney, where of tale tliere have been many
Ulicil jirainicM In order to Dierthrow the con-
atilutiont of the town ; and thereupon auplica-
lion was made to tbe Court of Kin^^'a- bench,
in two aeverai causes, ■){ains( Gibbon aud Dai^
by, who were to hhew by what authority Itiey
^imed tbvir freedom! ; and lliey inaisted ibey
had married the daughtera of freemen, and
thpretbre had a ritfht to their freedoms; and
alao aeainal one Wifihtwick, who wai to shew
hy ivbat authority he claimed to be mayor of
New llomnrj.
Gentlemen, the election of the mayor de-
pending on the righiofOibbon and Darby, the
L'ourt,^ rule, directed I be information ai^rnat
Gibbon nrst to be tried ; and if he had no right,
Darhy was to lake the fiite of that trial, aiul lo
diaclaim.
Gentlemen, as the cli-clion turned upon the
right uf Gibbon and Darby, if ihii i'lsue he
fiiuDii fur tliein, theu WijThlnir.li is tbe mayiir.
Bni inttef i1 of coming to tbe qiieslioUy Whether
a man haaa right to a fi*e«dom by marryint^a
freeman's daufchler t they have damurred :
ajid nnw the auertJ«o is, Whu ia to adinit tlia
Awmenf and I homUy apprebend, «y ^K^,
Cote of Mm Gibbon, pOB
where a number of freeman have Ilia fleaiaB
of a town, nobody can be let in wilheolllMir
consent; liir, if the mayiN' and jimli are I*
admit solely, they may aet op aa many free-
men at they please.
Hy lard, and genilemen of tbe jmy. A* IM
iiHtances they have produced outoflMasacB-
Iily-boolu, are, I humUy apprabnd, vtef
strong ia our favour ; for It appius fraai tbe*
instances, that when tbe boily faara agrHd
upon tlie choicn of a freeman, ibe majrar aad
juratt Bwear him; and I take tbe awearinf »
be a thiii|f nf course; but the adiaiMon fa ia
the whoii' li'iciy, aa ap])etra by everj iatlsaw
they have rrail. A freeman ia elected by ik
mayor, jurats, and cummon^ty, nod then MB
ordered tu be sworn in by the mayor andjunlil
sure there can be no doubt in tbe 'questiia.
Swearing and admitting 1 take to be Unsacit
thing; tliey are synonymous: wiihoat aoeir-
ii>X nil man can be adiiiided ; but Ibe aweari^
doea not admit. Suppose twenty frecoNa
awom in by the mayor and jnrmta, tbe Iraa-
cbifo of llw tnwn is worth nothing —
L. C. J. Vou take admitting to he the dw-
tion; it is not to: lint admitting In tbe eicrciM
of the riifht. Admitting is not cnnfetriai; iW
right. Tliu defendant has a righi hy liis nMr-
riagu : admitting muH be construed Ibe rt>
ceiTing hint into llic office, and admitting Mm
tu the exercise nf that ri^'ht, aud iber^raii
aynonymnua. You co npon a wmnr 'imat:
who were the persons iptiiuled to aomiDidv
the oalh of otficcf
Seij. Daniell. Admissi<m gives the ri|hl,
L. C. J. I think it would be proper to idMl
tbe issue to be. Who ought to administer tht
oalh ? — 1 don't understand tbe cuatona of iW
Cinque Ports.
StQ. Darnell. If tworn, whether duly cktl-
edf or it sipnifiea nothing.
L. C. J. I^inppose Gibbon to hare a right: n
oath administered to a man that bas nnrifkiii
of no a>ail : a man must hate a right la ■■
oflice, and must be admitted into that nffies kf
swearing ; and the queslion uow ia, Wbo ii la
administer that oath ?
Ser}. Darnrll. We are lo auppoittbeiighl
of Ihe whole bodv to elect and admit ; or lb>
Court of Kiog's-bench will think tbia mstw
not irietl.
L. C. J. The Court of Kiog'a-bencfa «eaU
Ihink mea trifling fellow to try tlie right af Ibe
election.
«erj. Darnell. The rule ia, tlial Gib-
bon's issue should be tried firat, aad Darbf
abiite llie fate of that ; to which Uicy hate 4a>
Serj. Bayna. May it pleaae your lotdsbip,
sod yuu gentlemen of the jury ; I am also af
couDtpl iu this case fur the king. The aeasa
ofthe Court of King 'a-bench was, in relalioato
a right set np by tiybbon and Darby ; aad tka
Suesliiin wu. Whether a pemoo taarryiiig' a
'eeman** dangbter waa intiuiM la biafiM-
dcra 7 And the Comt waacf opinicM, ikat aa|M
priodpalljr to ba triad ; mi m Baka aa aa*
809]
ttpofi a Quo JVarraido.
A. D. 1754*.
[810
oftlurwliole, if ^bboA and Darby hid a riflrht,
Wi^twick was to be mavbr ; if not, tGen Eltet
wai to be mayor. But they have evaded thia
qoeitioo ; and when an issue was tendered to
trv (be right, they demurred ; and thereby the
MB rcaauo of granting these inforroations is
fstiidy eluded : and now the question is, Whe-
Ifacr the sole ri^t of admitting freemen belongs
li the oorporation, or to the mayor and jurats,
wtB the mayor and two jurats? But, gen-
iBDen, we oontend that the right of admission
■ ia the court of assembly. '
' The geotienen of tbe other side have pro-
teei some instances to shew the right to be
k the mayor and jurats, and that &ey have
icaiPdu^y taken upon them to swear in some
persQlM, and swearing is a completion of the
fsnoa'a riglit to be admitted.
My kml, the admission of freemen |is to be
■ade OD Lady -day : after the election the bell
Irib; and the persons having a right come
Mie the general assembly, and say, they
cUm 1» be iidmitte<l, for servitude, or as free-
Ion, &e. And they judge of these facts, and
tbneupmi admit; though the freedom is not
— pliltd till the person be sworn.
Gentlemen, tbe eviiiences the other side
hue produced go no higher than 1679 : where-
H we have instances, long before that time, of
dsMHODS by both ; and a new institution,
hiely practised, we humbly hope shall not set
iiis an ancient custom. Strange! that this
Crerof admitting should be in a part of the
J ! a mayor and two jurats cannot admit,
Miry to the general assembly ; when they
Im approved a claim, the right is to be com-
Sl by Bweariug before the mayor and jurats.
' are two distinct rights; and we shall
ce to your lordship and the jury unques-
liMiUe instances, that this is the constant use,
Ar the jiersons claiming to be freemen to make
iot their right to the assembly, and af\erward8
liW sworn by the mayor and jurats. A high
nailable ia named by the justices in sessions,
tad then is sent by them to a justice of peace
li be sworn ; as, in tbe present case, a freeman
■ elected by the common assembly, and then
iisnt to the mayor and jurats to be sworn :
iMd therefore, ^entlefuen, we hope you will
isd a verdict for the king.
Mr. Wjfnne. My lord, the single question
Mwetbe Court of King's-bench was, Whe-
teGibbon and Darby had a right to freedoms
by Marrying freemen's daughters? By the
tics ef practice, it is impossible for any part
tf this question to come before this Court ; the
nUiquuil proceedings in the Crown-office
tN* shew this ; and nothing could be done
k][ tbe Court of King's- beoth, tbe pleadings
tiiig brought into the Crown-office alter the
My lard, it ia endeavoured by the gentlemen
|Mw other side to take away the distinction
wseo the admission and swearing ; and it is
He, tbey are by disiinct bodies,
^^tlenen, the claim is first to be made to
^l^enUaisembly on (Ady-day, vd tolling
a bell: when that 'has been considered, and.
allowed, and admitted by tbe general body,'
then, by delegacy, it lias lieen sent to the mayor
and jurats to swear the person, and is merely n
ministerial act; and what they have done baa
been in ease of themselves, iu delenpusy to them.
It will appear from the ancient entries, (their
highest entry being 1679) and it is at an as-
sembly of mayor and jurats, Peter Martin was
ordered to be sworn by the mayor and two
jurats ; but not to part with any right they had,
as will fully appear, when our evidences are
compared in pomt of time with the others.
You will please therefore, gentlemen, to con-
sider, that the admission is the act of the general
assembly, but the swearing the act of the mayor
and jurats.
Serj. DameiL My lord, we humbly insist,
the sole right is not in the mayor and jurats.
X. C. J. I am of opinion, this is an admissioD.
Serj. DameiL In all the instances, till 1679,
they were* admitted at the general assembhr ;
and in 1699 they have read one instance. We
insist, therefore, that our evidence is equally
strong.
Mr. KnoKler. My lord, we have a rule to
produce all the Corporation-books at the trial,
and Mr. Wellard refuaes us the books.
Mr. Wellard. My lord, we have brought the
books hither at a great expence. Mr. Wight-
wick must be paid for them.
Mr. Knawler. Mr. Wellard has had fbnr
guineaa on that account.
Mr. WeiUtrd, The majror has been at more
than four guineas expenoea already, and there
are several other chargea to be paid.
L, C. J. Yon should agree to pay what the
master of the Crown-office shall think reaaona-
ble more than four guineas^ and enter into a
role for that purpoae. (Which was done ac-
cordingly.)
Mr. Hacy, My lord, we submit, whether
this is proper evidence on the issue ? the plea
is, that the sole right of swearing and admitting
is, and at the time of swearine and admitting'
Gibbon was, in the mayor and jurats, or in the
mayor and two jurats, of the town and port of
New-Romney; and the issue is taken upon
that, Jf , ohd at the time was—'
X. C. /. I think it proper evidence, to shew
what has been tbe usage by the books. You
must prove an ancient right; for Gibbon's
right must be determined by the ancient usage.
I^Herea great dispute arose about the Corno-
ration-books between Mr. Wellard and Mr.
Knowler, &c. Mr. Wellard being in fear be
should lose them.]
X. C. J. Give them all in, and call for them
one by one. Yoo have them, and make no
use of them.
Serj. Darnell, Fol.*-Kead the election of
mayor an^urats—-
Astociate begins to read, but could not go on ;
when the Cbtef-Juitice took the book oat of hts
hands.
811]
8 GEORGE IL
Cau qfJahn GibboHtf
JL C. J. Give me the book ; I can read it.
[Attempts to read, but does it verj iiidistiiictly
mod with j[reat difficulty ; and then throws
down the book, not being able to go on.]
Mr. Wetlard reads : *' The election of mayor
and jurats of the town and port of New.
Romney, 1571. According to patent, appeared
John Stevens and others, in number fourteen ;
by their consent, Mercer and others chosen
jurats.*'
X. C. J. Admission and election are synony-
mons. Let it be shewn, that any person was
sworn at tliis assembly from an entry.
Mr. Wtfnne. Read the admission and swear-
ing of John Amersham.
BIr. Wellard reads :
** So March, 1571. John Amersham, natos
apud admissus et jnralus BAfranchu^\
Ih C. /. Shew that he was elected before :
this is very material evidence.
lierj. JMrnelL Read tlie entry of Thomas
Bastard's admission in 1671.
Mr. Wellard reads :
" Election of mayor andjurats of the town
and port of New- Romney, 1671. According
to patent, appeared John vJhessman, and Lau-
rence Fane, Thomas Wall, and others ;
** Thomas Bastard, natus anud Yalden, ad-
missus ad firanchis' et sol' feod'."
Serj, JBayncf. Read the admission of William
Southland, the 9th August, 33 Elizs.
Mr. ITt/^ard reads:
*< Gulielmus Southland, natus apud
9 August, 33 Elizse, admiss' per Major', Jur',
et Com' ad I'ranchis', et sol' mdefeod', et ju-
ratus."
Mr. Wynne. Read the admission and swear-
ing'of Thomas Master, auU five others, Lady-
day, 1579.
Mr. Wellard reads:
•( Lady -Day, 1579. Appeared William
Ilyett, John Chessman, Richard Boppen, and
others, commoners and freemen ; were elected
and chosen ;
** Thomas Master, admiss' et jur' fol.' feod'.
** Habbakuk Thomas, adni' et jur*.
** Qui' Taylor, adaiiss^ ad franchis', et jur',
etsoP feod'.
** James Gardner, — ^Thomas Wymond, —
Johannes Southern, adm' et jur' et sol' feod'."
Now turn to the admission and swearing of
John Smith, and others.
** New -Romney. Election of mayor and
jurau, 25th March, 22d James 1st, 1634. Ap-
peared Bedeil, mayor ; Lancaster, and others,
commoners and freemen ;
** John ftSmith, admiss' ad franchis' et sol'
pro jur.'
** Geo. Labden, adm' ad franchis', et sol'
S«. 4rf. et jur'. •
*' Daoiel Duke, admisa' et jar!.**
8erj. DarmeiL Raad the enll^ of ll» W
March, 16:{7. *!-
1
<c
[81S
Election 25 March, 16S7. Appeand Fell,
mayor ; Lancaster, and others ;
" John Plomer, free boniy admiss' is
franchis'."
N. B. It does not appear be was swnm.
Seij. Bay net. Read on the entries in 1659,
1660, and 1666.
<' 25 March, 1659. John Wyfill admittc4
and sworn.
** 15 October, 1660. Four pemiw admittd
and sworn.
« S9 May, 18 Car. 2. 1666. Mmyor and jn-
rats, at a common place ;
'* Richard Strode admitted into thefrancbiWr
subscribed the declaration, and took the oath if
a freeman, according to tbecustomal."
Mr. Wj^nne. Turn to the admission loi
swearing of John Gray, the 2d of October,
1699.
Mr. ITc^rd reads:
«< 2d October, 11 Wil. 3, 1609. Mayor ui
jurats, at a common place, coaunonflis mi
freemen;
<' John Gray, being free-born, was adaiUid
and sworn according to the custooaal."
Mr. Knomltr, Read on till you come to Mr.
Fumese and Mr. Papillon's admiasiott tad
swearing.
<< 4 July, 1683. l^Iayor, junta and cm-
moaers, at a common pls«e ;
" John W^alker, free-born, ThomaaEdnA
Richard Kent, and William Pidd, wereawon
according to the customal, and admitted so*
cording to the election, at a common assembljt
" 4 Nofember, 3 Q. Anne, 1704. Msycr,
jurats and commoners ;
'^ Walter Whillield admitted and sworn.
<' 10 October, 1710. Robert Coates, uajir«
jurats and commoners ;
** Robert Furncse admitted and sworn ac«
cording to the customal.
*' 20 April, 17 13. Mayor, jurats, and CQB*
mouers ;
«« Edward Watson admitted and awom.
<< 23 March, 1721. Mayor, jurata, sal
commoners ;
*' David Papillon admitted and awora ac«
cording to the customal."
Serj. Darnell, We submit it to your lord-
ship, whether here is any colour to say, tbit
here is a right in the mayor andjurats solelj.
Mr. Knowler. M v lord, on the 28th of No-
▼eniber, 1727, John Mascall being befoit
chosen, the Court made an order, tM ha
should not be sworn.
L. C. J. A very strong evidence, tbit
the right is in the mayor, jurats, and eon-
monalty. They have siiewn only from 1979-
I desire to know, if they can ahew any ^"^^^
before the Restoration.
Mr WMirAfmdn
*jt
tttio^, hare
to befrM*
sned toIafc«
di dMiHwd
)d juraU."
s hatF not
■dmitting.
11 not praT«
A.D.17M. [Sit
comanncnBhaaMbMUaMaM befoKihev
had the tettin; of the |Mnh Tmir lordship
WH \Ammi to M, you oM nW uiiltnMnd (he
CMlumof Um CiM|iM Pwta ( w^Ao we ftnd
nMojF imkM HBlriM, Am thii MwMrien ihiMM
b« •ixmi Meoi4i«f ta A* AnM* of bralhtr*
hMdwdghMMtliar; whteh to U oMRnMy or
pariHKWDt or Iko Ch^M Vmm^ wh^n ibcy
meet and make ordcn M tata») ihey fxtend
to -"- --pTtTn in [ITtim nf mi|ili. flitlui'nre, »i)
power, If not 1b ponit oTailtiwritj'. Wc hu|>e,
niylord,tepnrtiMMd|l*«ia evidence theae
actaorHMnUy; aHdlMlNNM«w), wedoabi
tmtutlbo jury wW'flBd Ibr at,
Mr. IPaJiarrfMda:
neeootend
hecootraty
Bod Triti de-
^un eariy
i:k u isri)
<D : and the
lo be, " At
a," thongb
:he persous
■, that tbey
ou may ai)^
, ibe entry
ITD. But 1 I
her, ihongifa
ectiog, yet
brmed, that
the mayor
"TVeOU
•' NMr-BoaHey.Jienry V\l.
•* Item, it ia mb<, that, if • afenger of good
■omeand cwvonutaa'to^Mlli^f within lira
town, and dirirrtb lo b* a Ikwinan of tfao
I town, the jdrala Msy gnM the I'nnchiaM,
paying to Ibe eonmow m Ibav may accord ;
and wlien Ih^ be MMfdai, Ik Mil be char^
ID a boob, for MMiotHD** ftvnchises with
hia body and eatllo, aad Ibr tt-he trne in nil
painti,asdfcrMbnpall1lM«MnBnnscoun>cl,
and to be obedhw aa eaitfcir frcetuan to tb«
GoniBoaa, and t* lM«« i fnfarplmot. of ibe
price of 40f. within the tain, «Wi:o the nest
yeereiiMiliw, by whIdllM oin-be dhtmACd
and iofliified, upon pais of mftltuw or Ma
, fronchiie : And wbcB ba to Ikoe awoni, llje
)me aDcient
din^ to I he
yao. These
I lubmit it
1083 do not
e ? For, if
tiie mayor
rith i
; and
ariop to be
,■ would not
ley had not
tihem. As
lecustomal,
apillon, and
lie relermce
Iwtnif 10 be
and tiiatlfae
paper of
fur (o vilMnlb* will gnnt ; anil
all hto DhiUreo, ftoriy gBUaa after the same
day of grant, way dum and ewoy the fran-
ofatoe bytbenmegmt: Bal,if he hateany
ohUdran bafoia Ibaaay ofmat, or else ihat he
get any obild wliwwlaa Uiaa In tjionsal, he
ahall not ba*e the aama frUHdiiae hy the
granii.butif bebeof Bewgrant,End it is lo
wit, diet the jtarata may wtt grant the franchiie
U no ftratiger-mtD, if he bo aot reliant wiihin
tfae fiaochiae."
Mr. £af)p. Hy lord, tbe jarat» shall grant
the franchiaea, and the oommaaa ere lo set \.\\i;
price.
Mr. Smitk. Gmntlbcfraiwhiaes must he to
put them in poaacaaien, which caniiut be till
they are aworn ; awl tfait eommans ure to aet
ihe price.
Mr. Laey. Mlhe madem entries mention,
according to the Caatomal.
L. C. J. It ia taking the oath according to
ibe ciisioinal. la there the oath of nlfice of ■
Anodale reads the fteaoan's oath.
Hr. MariA. Now read BDActofGbueattinQ:
L. C. J. We'll hoTe do brotl>erliood and
gbueatliug: I know notlung of it, l«t Mr.
Town-Clerk explain it.
Mr. ir<»artf t««d»-
815] S GEORGE II.
■* At a Brolberbood held at New-Romney,
Ibe 8th of Jaly, 1603.
** Whereas there are, in many of the tofrna
and members of the Cinque Forts, men of
wealth, staid, and of good government, direll-
iBg witliin the same, who enjoy much benefit
•f their so dwelling', viz, free from payment of
fillleenths and tenUis, and from being returned
to appear at assizes or sessions in the county
where they inhabit; ami receive many other
privile^^es and benefits, by^ reason of their so
mhabitmg within the said Cinque Ports, an-
cient towns, or members, which otherwise they
could not enjoy ; and yet refuse to be freemen
of the same town and port where they dwell,
and enjoy the said benefit and privile^ifes ; by
reason whereof, divers of the said towns, ports,
and members, are unfurnished and unprovided
of sufficient and able men to execute and dis-
charge such offices and services, as tbey art!,
by the charters and customs of the said Cinque
Ports, towns, and members, bound to do: It is
therefore, at this assembly fully consented and
decreed, that, if the mayor, jurats, and com-
monalty, or the more part o^ them, in any of
the said Cinque Ports, towns, and their mem-
bers, (or bailiff, jurats, and commonalty, where
no mayor is, or the most part of theui) shall
think any inhabitant or inhabitants dwelling-
amongst them, and in that port, town, or mem-
ber, which such mayor and jurats, or bailiff
and jurats do govern, and shall by the more
voice of mayor, jurats, and commons, (or
bailiff, jurats, and commons, where no mayor
is) chuse such their inhabitant or iuhabitants
to be freeman or freemen of the said town
w here they so goveni, and shall call the said
inhabitant and inhabitants, so to be chosen a
freemau or freemen of the said town, to their
court- hall, and there, in full and open court,
acquaint him and them, so chosen to be free-
man or freemen, of their said choice and elec-
tion* &nd do then and there require such person
01' persons, so choKcn for a freeman or fVeemen,
to take the usual oath of a freeman in that
place, and he or they, so chosen, shall not
then and there, without further delay, take the
said oath, and become a freeman of the same
place, shall forfeit, to the use of the said town
and corporation w here such default or neglect
shall happen, a fine of 10/. of lawful money of
England. And so ot\en as the mayor and
jurats, (or bail iff and jurats, whcreno mayor is)
after snch election or choice of a freeman or
freemen f as aforesaifl, shall in full court, there
to be holden, proffer the oath of a freeman
there used to such person or persons so chosen
as aforesaid, and he or they, to whom such
oath shall be proffered, do not take the same
oath, and become a freeman as oiher freemen
of the said place, shall forfeit for a fine, to the
use of the said corporation where such neglect
shall be, for every such neglect, and not taking
of his or their oath, lOL of lawful money of
England ; to be levied upon such person and
persons, so neglecting to uke their oaths, as
fines in the said place are naad to bo kfisd."
Case of John Gibbon f
[sn
Mr. Lacy, My lord, we hnmWy solmil, wt
are intituled to tlie sole right. Jnstanoes hate
been produced, to shew that tbo coauBsai
have a right with the mayor and jurats;, for
all the entries they have produced refer to lbs
book of brotherhood and ghaeatling, and aft
the choices in that book are by the mayor ni
jurats,* who are to offer the oath of a freemio.
Read tlie Act of Ghuestling of the 9Ut iT
July, 1668.
Mr. Wellard reads :
«c
Brotherhood, or Gh nestling, held at the
said town and port of Ncw-Romney, IZlst Jslji
1668.
««
Whereas, by a decree of hrotherba^
made in the year of our liord 1603, it isca>.
sented to and decreed, that if the mayor, junt^
and commonalty, (or bailiff, jnratM, and ooa>
monalty, where no mayor is) shall, by Bwjv
voice of such mayor, jurats, and commons, (k
bailiff, jurats, and commona, where nomajftr
is) elect and chuse any inhabitant . or is-
habitants, in their respective corporatiiai,
to be freeman or freemen of the said tosrs,
and shall call the said inhabitant or inhabi-
tants, so chosen a freeman or freenn flf
the said town, to their court- liallf and thcn^
in full and open court, acquaint him and tbn-
of such election, and shall then and then is>
quire such person or persons, so cboKS t»
take the usual oath of a freeman in that pbei^
and he or they shall not then and there^ wilb-
out further delay, take the said oath, and b^
come a freeman of that place, sitcll forfeit to tin
use of the corjporatioo where such default tf
neglect shall happen, for a fine, the snoi flf
10?. And that, so olteii as any inhabitant ir
inhabitants, so elected freeman or freenieo ii
any of the said towns, |K>rls, or members, sbal
refuse or neglect, (the said oath being tm*
dcred to him or them in manner aforssaid)
every such inhabitant shall forfeit the likenitt
of 10/. to l>e levied as in tiie said decree i*
directeil, and as by the said dectve my
more fully appear. Now, for that this sm
sembly doth find that tlie said decrM is
not so effectual to compel such inhabi*
tants to l>e made free in their resitcctive cor-
porations where they do inhabit, but that seve-
ral persons do evade the same, and the {lensltj
therein contained, by refusing to appear in fall
and open court, whf>re the said oath is to be re*
quired and tendered, as aforesaid, and by diren
other subtle devices ; wherefore, for preveotisf
such evasions and devices for time to cooc^
and for the better upholding of several corpo-
rations of the said |M>rts, towns, and membof,
which otherwise may cease and be annihilateili
it is now by this assembly fully decreed and
ordereil, that the said penalty of 10/. mentioned
in the said recited decree, is, and shall be, by
virtue hereof, imposed and levied upoo evcfy
inhabitant of any of the said ports, towns, sc
members, who shall be eUsctcd a freemsn sf
such respective corporation wherein lio isinha"
bitrat, according to tbo su4 aooicBl dmto} ift
BIf] uptm a Quo Warranto. A. D. 17M. [818
X. C. J. TheqvefltKm is, Whether this be
the due maDoer and form alle|^d in the plea f
Mr. Lacy, We have a right, but not a sole
rigrlit.
Serf. DarnelL You ha?e pleaded, yoa haf€
a right by marrying a freeman's daughier;
and that the mayor and jurats have the sole
rii^bt of Sfrearing and odmilting you to th&t
right; and that you were sworn and admitted
inhilitiitor inhabitanii, ao elected,
tell idm er neiflect to be and appear at the
■It oeart of Reeerd to be boMen w auoh eor-
rirpfloa wbtfreiD be dwelletli, apon verbal or
Aer evainooi from the mayor or bailiff of
aeh corporatioo, to be made by himself, his
Bjeatt, or other officer; or, upon appearance
I such court, shall refuse or neglect to take
be eirth-of a freeman in manner afiiresaid : and
bst, eo often aa such inhabitant or inhabitants, j in due fi>rm : therefore you were admitted by
iflected free, shall refuse or neglect to appear the mayor and jurats, ivbo bud the sole ri«fht*
saoy court to beholden in such town, portf or 8erj. Baynei. The queHiion in, Whether
JEWicr, where he or they inhabit, upon like they were duly admiltfd and s\vi>ni Itv t.'oates
fcwmnna, as is last above mentioned, or ap- and two jurats? And if they were, tin* ritfht
taring, shall not take the oath as aforesaid, ! must be in 4 he mayor and two jurats only.
aud every of them shall forfeit, for every Read the plea.
offence contrary to the intent of this de- j, . . i ^-ui i i i e
nt, tbe like .oni of 10/. ;' which seven! fines ^*'«""« "*•■• ^''''*» " P'«»' " '"•♦^'*-
Ul be levied by warrant under the seal of L, C. J. That he was admitted in due mftn*
ifiee of mayoralty or balliage of each town or ner and form ; so the plea is.
Maker where tbe same shall be forfeited, or in Serj. Darnell. My lord, by the plea, he al*
iKh other manner aa fines hi that place are ' leges the sole ri<*>ht to be in the mayor and ju*
muBf levied." rats, and that he vns admitted in due manner
lex If the mayor and jurats call the ?»«''"<»™; T'^.k '""?* ^i^/ ""e mayor aod
■■■. and be lefase, ttey may it • fine uimn ^^ ^?» ''"" '^f f'' "K^ *• _„ , . .
g^ * J J i Mr. Wynne, My lord, the second issue is,
«r. £«y. My lord, we hambly insist, the Z^^^^^' """'"f P "^l?** ^f "'* .''*'?• "^ '"
irisririit of swnriniF and admiuinir is in the ""*•"""'*•' ■»'' fo>^m" Tlie rephcation an-
IHys?^ jurats, or fn the ma>or and two ju- 'T/"' '*'''•* ^^^ "» "°» '"l'?"'"^'' "'."* "^^ j"
SSr-Tbeir evidence is of admitting at a com- ^JJ-TU'A ™ T.'.l.i' if^ " '"^"f '
MO assembly ; and tbe issue is not confined to l^'t.T' .T'tt^'? ".•"""* .?' 'T"!;
tfrnayor and jurato only. The first evidence S^!^ !^f ',;"Jl.^.r, * ''""»*'""""» "^
M k«n with, was an order of the mayor, >":;" V ^ * w k-.-. •. . i j w
« r* ■ _. * „„.i,„ f„. ,K„ »..,». .»,»;.. Mf- Murth. We submit it to yourlordship,
2!^!ii,?^T^^• f"' "»« ,"'«J»r,'«'«'J"- whether the second issue involvn any matt^
nklo swear in a freeman, and they did swear ^^i^u^^ rri ^ .*^ ;.. u^«u *i. . i -r
ik in accordingly. The other' erideiices !["'^^': J''*™!'riLS^fr'*'!-"^[^""''!f
mare of instances where the mayor, ju- ?"•.-. f .rV". '^'^ i".^" *"* "'* '*^?n''
hk,uA commoaalty. all swore in. *And we "»'•«.•««< H'e fact of completing remains still;
■Slit it to your lordship, whether the e»i- jnd it is necessary to proTe that mue. It tnay
^ of swearioff in at tlfe common assembly ^, '''»"?•" '.■""Tlk / '^«P'*?'^'?'*» "* *«
il ^ a concurr«,t proof, thai the sole right U " '^' "?* ? . ' ,\ ' ^^
■ ihe mayor and jirats ; because the mayor "^^ "'i" ^ »'««''»'ely necessary.
tmA ;...Na«. "L.,-* k» ....* ^} »K« ^..^^^^ — /« M""' Lacu, Rly lord, tbe first issue is, Whe-
lu jurats must be part or the common assein* ,i^. ^n ^ "^ « ^i «i^»» i« i
By? and if so, though tho commoners ar« not **' ^'^"^^ ;"» ^ ""'' "''""*«' '" •'"«
pie, yet tbe swearing shall be construed to be r"«''»V " ™ """^ " ""• '*"
EiAra the mayor and jurats; Reddendo tingula •'"^ ^/t r ¥* ^ 4» i ir
Mn/i*. YSur lordship sits judge of l*i.i ±,p:J- J' 7" «!" « *"»* """""^ «"1 '^"'
hS!^.iidtakesaiiae itisnotlsjudgeof ««>'«• Ihey had a right.
jlj^jA^ * J s • Mr. Lflcy. My lord, we humbly hope we
L C. J. The common assembly, as mavor. ''"" »'7". V".**^™' evidence, that there i« a
ini.. and commonalty, cannot hold a court o !"??ifrJL?„^V° I^'^^IT,^'^ ^TJJI™. \
M An assemkly'^can act only as that as- *"? '^ '.. ^ P" '
MiUy. Ifa select number Uke upon them to a? T 'f ,r.i.- « . • u.. 1 1 !..«•„ „i
4i ^iet of tbe corporation, that will be a roid . J?' *""*• ,!*• !''*J?"^1?"* '^^r. iK.« • L
j^. *^ ' a^instus, will It not be true, that there is a
Mr JUortA Mv lord the second issue U "^**^» ** "°* * ^"*® *^'*>''^*» '" ^''^ ™">'^ ""** J""
rfSiSSon .^^^^^ «*»? .An^**- -o. thedefondant C^hbon was
fiTXrVril.^.. -«.i ♦,«,. ;.!..••., p sworn in that manner, and so he insists niion it.
*LC. rcTbSrpK That he was inti- «. Mar,k My lord it is plain there was .
J*! that the »«yor and jurats had a right to ,7, ,7. „.^ ^ ^ ^ contradictory evi.lence
SMTi Md that t* w« sworu in accordingly. ,j f^ j , i^ ^ , ; ^^ j j ,
kHQ* JJarneU, The detendant was not sworn u ,* .• . -i ^ . : . « «* ^o* ..* «i -.«
iiUAnkled ai by the plea is alie-ed. Head '^"*/*."" '"TI^ ^"'^ '" *"? '"^ *^''''* '^^ ^
JjT7 •' *^ aucocu. A%c«u ^^^^j ^^^yg^ ^^ bother it was in due manner and
^^ form ? And, if we prove he was sworn in any
•IhWafi icaiij Gibbon's plea, as before opened, due manner, we hope the jury will find €»'
VOL, XVII. tiQ
819]
8 GEOBGE U.
Case of John Gibbon.
[8S0
L C. X ft raiut be ID the due maiuier you
have set forth by voiir plea, which muit be ac-
cord'iDg t6 the right asserted to be in the issqe.
We must Dot suppose there are two rights. It
must be in the due luaDoer upon the construe^
tton of the plea ; and I shall leave it upon my
own sense or tlie matter ; I shall not lump it.
Gentlemen of the Jury, this is an informa-
tion against Gibbon, in the nature of a Quo
Warranto, for exercising of the office of a free-
nan in New Romney, to which he was not
intituled ; and for usurping the exercise of that
office.
To this he pleads, he is intituled to hold the
same, and to exerctiie this office, because he
had married the daughter of a freeman, and in
ber, by the custom, is intituled ; and that the
right of admitting and swearing is in the mayor
and two jurats, and that by them he was duly
admitted into this office. To this plea there
has been a replication, which ends in a demur-
rer ; so not brouffbt to be tried.
The king re|£es, that tke aole right of
swearing and admitting is not in the mayor and
jurats; and therefore the defendant is not duly
admitted to the right of a freeman.
The right Gibbon has is not now in any issue ;
but, supposing he had such a right. Whether he
ahould oe sworn by the mayor and two jurats,
exclusive of any other people ? And the other
ibsue is about the defendant's being duly ad-
mitted. If the mayor and Jurats have a aole
rijght to admit, then Gibbon w duly admitted ;
and if they have not that sole right, then he is
not duly s^dmitted, in the sense of this plea.
To prove the sole right to be in the mayor
and jurats, the defendant has produced several
books ; by which it appears, several freemen
liave been admitted by the mayor and jurats
solely. He particularly instances,
AUrch 8, 1679, at a common assembly oi'
tlie mayor and jurats and commonalty of the
town and port of New Romney, in the com-
mon place, Peter Martin is elected, and ordered
to be sworn in by the mayor and jurats.
December 3, 1694, another mstance of a
freetftan admitted and sworn by the mayor and
jurats.
May 16, 1698, another.
Another February 7, 1708.
Another June 13, 17 15.
August 6, 1717, one Widcomb and another.
November 18, 1727, Thomas Wilson.
June 7, 1731, William Gray.
And there are other instances, the 18tb of
March, 1668, and the 22d of July, 1683.
So here are people sworn and admitted by the
mayor and jurats, nut the election is at a common
assembly ; and people elected have been chosen
at such an assembly, and must be so elected,
unless they have another right. But the com-
mon assembly have not a right to swear these
people; but the sole right, Gibbon says, (for
■wearing and admitting are synonymous) is
in the mayor and jurats.
The other side say, it shouUI be by the oom-
MOH aaaambly, rather than by th« mayor and
jurats only ; and to sliew yoo tbia, thsj hats
called for several hooks, and sliewo aaoit ia«
stances of admitting by the mayor, jurata, aai
common assembly, than by the mayor aai
i'urats alone ; and many instances of admilliag
»y the common assembly.
And this swearing is a prescriptive right, as
du-ections being in the charter about lU
And the crown.says, that, by aocicat MBg%
he ought to be admitted by the common ss»
sembly, and not by the mayor and jorsto
solely ; 1679 is the only admittance.
But they instance, at Lady Day 1571, its
common assembly, at the election of ma|«
and jurats, several people, John Amersbaa
and others, were admitted ; * admisaus el ji-
<ratU8.'
Soon after, 1579, at another ooromon assem*
bly, Thomas Master < admissus ad iraiiebis',d
juratus.'
In book N<* 7, and in book N* 4, ia so dec*
tion on the 25th of March, 2S Jac 1, and then
certain men were admitted and awum, oat
Smith, Labden, and one Duke paid bis 9t. 4d.
Another instance, in 1627, of a persosid*
mitted and sworn at this oomnMm assembly.
By their admittance I understand elected.
Another, in 1659, admitted to the finnehiit^
and sworn.
Another, October 15, 1660, four pcrsow ad-
mitted to the franchise then.
Another, May 29, 1666, Richard Stiids
baring taken the oath of treedom, accordingti
the customal.
October 2, 1699, John Gray, free>boni, WM
admitted, and took the oath : though he wn
not intituled by their election, but was free*
bom, yet the common assembly swore him.
July 4, 1683, at the common assembly, Joba
Walker, free-bom, and three others; tbeyswoit
him and the others, and they were admitted.
November 4, 1704, Whitfield was admitted,
and took the oath.
October 10, 1710, Robert Furaese was sd*
mitted.
April 20, 1713, Mr. Watson admitted.
Marrh 23, 1721, Mr. Papillon was adnittid
in the sriiib manner.
Which shews, the sole right was not m tbi
mayor and jurats; because the common assos*
bly exercised this at the same tanoe, and did it
before the mayor and jurats.
In 1679, a person elected was ordered ta he
sworn by the mayor and jurats : but sure tbff
have not the sole right, there being more fia*
oede'.its against the sole right than for it.
The ancient practice has been to iwear tbca
by the common assembly, and no modetn pra^
tice can take away that right.
If you think tlie sole right is in the martf
and jurats, then you must find for the dcMl*
dant.
But, if you think it to be a concurrent r%bl
with the common assembly, then the ismm ii
against the defendant ; for the mayor awl jnaH
have not the sole right.
The seoond issue is, Whether the
Case of Richard EUes.
K. D. 17S4.
rnt
tad jurats? But this
; for mfler the
EiBfl jams TifM ii tet fbith to be the tole
ib4 fkm dMMOt 9ky% be wis duly ad-
it k, he «M edinitted aceordin^ to the
rifht iHiiled ea bj the plea. And if tlw major
■MJaralafaBfCBat the sole ri|^t, we are not
Ii MppMB Ihqr have any oiber rig^t; for the
irfMaat haa eanftacd hinKelf to tbe aole
i^ Hci^^hnwaadnljadmilled; 1
nutt be hy the right aei fMth by the plea,
which is the lighi of swearioi^ aoMy by ^km
mayor and jurats.
The question therefore is, Wbfiher fhm
mavor and jurats have the aole ri;;ht f
If you find for the king, or for the dt-fendaat,
in tbe first issue, you roust find the
issue in the same manner.
▼erdict for the king in both issnei.
^
\
496. Case of tbe King against Richard Elles :* 8 George II.
A. D. 1734.
Upon an Information, in the Nature of a Quo Warranto, by tbe
Khig^s Coroner and Attorney, against the Defendant, to shew
by what Authority be claims to be Mayor of the Town and
Port of New-Romnet, at the Relation of Benjamin Man.
Tried at Kent Assizes, held at Maidstone, the 6th of August,
1734, before the Right Hon. the Lord Chief Justice £}Te.
Vr. Knoarler. MaY it please yoor tord*
aftd y9u gentlemen of the jury ; this is ao
tiaSi in the natnre of a wo Warranto,
the defendant Elles, to shew by what
ky he daims lo be mayor of tbe town
put of New-Romney : and the infonna-
larti forth. That the town and port of New-
aii ancient town and port, and one
re ancient ports of this ktnffdom ; and
harons and inhabitants of tbe said town
mIfHt are, and for ten years last past, and
k^ Idbre, were, and hare been, one body
WpHBlii and politic, in deed and in name, by
tbiiif I ofthe mayor, jurats, and commoiialty
if the town and port of New-Romney, in the
SMi^ oTKent ; and that the office of mayor
if thtaaid town and port is, and lor and during
il Aa tiaie aforesaid hath been, a public office,
ai an attee of great trust and pre-eminence,
~^* 'he said town and port, touching the
government of the said town and port,
tha ndounistration of public justice %nthin
ime town and port; and that Richard
of the town aim port of New-Romney
yeoman, on the 19th of April, in
i year of his present majesty, st the
and port of New-Romney aloresaid, did
«f aad a«etcise, and firom thence continually,
tithe tine of filing tbe information, hath used
Jrtaawt'iitd, and yet doth there use end exer-
4m^ without any legal warrant, royal grant, or
i%ht whatsoever, the office of mayor of the said
tnmand port, and to have, use, and ei^oy all
Btiea, jRivilegca, and franchises thereof;
tbe said Richard Elles upon his mi^esty ,
snrped, in contempt of his msjesty, and to
Al great damage and prejudice of bis royal
* 8ai 3 Strange, 994; and Kydon Corpo-
prerogatire, and also against his crown and dig«
nity : whereupon he prays process, &c.
T6 thb the defendant has pleaded. That tha
said town and port is an ancient town and port,
and one of the five ancient ports of this king-
dom ; and that the barons and inhabitants of
tbe nid town and port are, and lor the space of
ten years last peat, and loog before, were, and
have been, one body corporate and politic, by
the name of mayor, jurats, and oommonahy of
tbe town and port of New-Romney, in tha
county of Kent ; and the office of mayor to be
a public office, and an office of great trust and
pre-eminence, as by the information is sup-
posed.
And that the late queen Elizabeth, by her
letters patent, dated at Northaw, the 4th of
August, in the fifth vear of her reign, did will
and grant, that the oarons and innabitanta of
the said town and port (who befbro were in-
corporated by tbe name of jurata and. com-
monalty, as she was mfbrmed) from tbeno^fbith.
for ever should and might be one bodv in it-
adf incorporate, in deed and naroe^ f>y the
name of mayor, jurats, and commonalty of the
town and port of New-Romney, in the CMMitr
of Kent.
And thereby made and ordained John Cheas-
man, then one of tbe said jurat»« mftrra* of the
said town and port, to ha%-e and rrmnae that
office until Lady-day then next efi>oin|f. if ha
should so long live; and di.1 thcrrbx nnlee,
ordain, approve, and conftrm .lohn tVrcker,
William Ipse, George Holt<^n. I Jinrencr Famu
and Jefiery Tomkin, then jo rat? ot the said town
and port, to have and exerviM^ that nfficr dnm^
their respective lives, in mannor and form as
the jurats of the said ton-n betont that time «z-
erciaed their said offices.
And thereby wilM a&d grwia&^tli
ess] 8 GEORGE II.
Lady- day then next ensuing, in the pariah
Shprcb of Sl Nicholaa, withio the aaid towD
and port, ooe of the jurats of the aaid town and
poft should and oiii^Dt be chosen mayor, by the
Jurats and oonimonalty of the aaid toivn and
port, for one whole year then next ensuiofif ;
v^ich said jurat, so elected to be ntayor, if ne
•kould be present, should take his corporal oath,
for the due execution of his office, hefore his
pre«lecessor, in hke manner and form as the
mayor of the town and port of Sandwich used
to take it ; and if such person so elected, should
not be present, then at the next court to be
boklen within the said town and pert : and
so from year to year, and from time to time^
the mayor shall be chosen for erer.
And that every one of the jurats, from time
Co time, from thenceforth for ever, should be
^oaep by the commonalty, or the mater part
of them ther^ present, out of themselves, in like
tnanner and inrm as before that time they had
been used to be chosen there : yet so that the
jurats at one time should not be, in the whole,
above tlie number of twelve, besides the mayor.
And the defendant by hrs plea further saith,
That upou the 96th of March last, and \oDg
before, he was, and still is, one of the jurats of
thesaul town and |K)rt; and so being a jurat
as aforesaid, and John Coates, esq. then being'
nay or, and then one of the jurats, the then
jurats and commonalty assembled themselves
l0{|;ether in the parish church of St. Nicholas,
within the said town and port, for the year then
next ensuhig, according to the tenor of the said
letters patent ; and lieing. so assembled, then
and there, at that assemmy, the major part of
the said jurats and coraiuonalty then present
there (of which said jurats the saul John Coates,
the then mayor, then was one, and present
there) cliose him the said Richard Elles, then
being one of the jurats as aforesaid, to be mayor
of the said town and port for the year then next
ensuing, according to the form and effect of
the said letters patent : and the said Richard
Ellos being so chosen into the place and office
Df mayor of tlie said town asd port as afore-
aaid, aAej^ his said election, to wit, then and
there, at the same assembly in the parish -
churdi aforesaifl, he the said Richard Ellea was
duly sworn into his said office by Robert LoiUe,
then town-clerk of the said town and iiort, be-
fore the said John Coates, being the last pre-
decessor of the said Richard Elles in the
office of mayor of the said town and port;
and the said 'Richard Elles, then and there,
t^ the said assembly, took his corporal oath,
for the due execution of his said office of
miayor of the said town and port, before the
aaid John Coates, his last prctlecessor as afore-
said, the said oath bciujjr administered bv the
said town- clerk as aforesaid, (tlie same being
the like manner and form, in which the mayor
of the town and port of Sandwidi, in the said
letters patent named, at the time of making
the aaid letters natent, was, and ever since
hath been, ami been used and accustofoed to
be «w«rD iiMff ifce said oftce of oiayor of the
Case of Richard ElUs,
[SX
said town and port of Sandvicb) aeeenling ta
the form and effect of the letlen patent afore-
said : and by virtue thereof, the said Richard
Elles, atter his election and swear ijag aforenid,
upon the aaid 85th of March last, and fnHH
thence continually afierwarda, until the time
of exhibiting the informaijon, at the towi^ and
port aforesaid, was, and still is mayor, ai|4 by
that warrant claims to be mayor of the aaU
town and port ; and tpn^venes toe uanrpatiuNk
The king replies. That the said Riebard
Ellea was not ono of the jurats of the aaidlewft
and port, in manner and form aa he bath al-
leged by pleading ; ami praycth tkat ihia mf
be enquired of by the country ; and the said
Elles prayeth the like.
So that, gentlemen, the firat issue yiMi eif
to try is. Whether the said Richard 'Aln wai
one of tlie jurats of the town and post, of New*
Romney, in manner and form aa be hath al-
leged by his plea P
And the second issue is, Whether the msjsr
part ef the jurats and commonalty of the said
town and port did chuse the aaid lucbard Elks
to be mayor of the said town and pmt lor the
year tlien next ensuing, according to the forta
and effect of the said letters patent, in nanner
and form as the said Elles hath aiao vHeged by
pleadinff ?
Gentwmen, the third issue is, Whether tbt
said Richard Elles was duly sworn into tlie
office of mayor of the said town and port, in
manner and form as he hath alleged by pkiai-
i»Sf?
And the fourth issue is, Whether theaiii
Richard Elles did take hiv corporal oath, hi
the due execution of the said office of 'osajor
of the said town and port, according to the
form and effect of the letters patent aforesaid,
in the manner and form as he hath alleged bj
pleading ?
And, fifentlesnen, the fif\h issue you arc cp
try is. Whether the manner and form, in whidi
the said Richard Elles hatl-. alleged himsdf in
his plea to have been sworn into the office of
mayor of the said towu and |H>rt of New*
Romney, be the like manner and form, in wbicb
the ma^or of the town <«md port of Sandwicbi
in the said letters patent named, at the time of
making the said letters patent, waa, and ersr
since hath been, and been used and accustooed
to be sworn into the said office of mayor of
Sandwich aforesaid, in manner and form asks
hath alleged by pleading ?
If therefore, gentlemen, evidence is laid be-
fore you, to prove that the defendant £Uea, h^
iiig one uf the jurats of this town and port, wsi
duly elected and sworn into the office of mayor,
then, gentlemen, you will find a verdict for hia*
Seij. Darnell May it please yoar lonlshifL
and you gentlemen of the jury ; I am couniJ
for the defendant Ellea ; ood you will please le
observe, that, by very great art, theao issan
are all turned upon the defendant to prose.
By his plea he seU forth the oooelitiiliiiia of
the towu and port of New- Romney ; Ihal ht
p a Qui' tfitrraitta,
««fliceal'tiiayor, tuid
BiUI uwa Uir oiitl», liul the otli^i kitle tuili
■tci; Ibnit u|iDU liini by |irnol': Ibey tav, be
WM uut a jivut; tliit lliu umJdi' pnrt uf ibe
jurat* and voniinoDKlly >li<1 oat chute l>ii>i ; aud
ilien, merely to rmilU|ily JMuts, aiul tut dclBv,
•ajt, you acF nm Bjuni ; tliemiyoriiariut'lue
jiimU mill cuniiiwwlly diJ not cliui* juii;
.1 <1iily aworu ; llwt 1>« ilid nol Uke
line aotwiliDft lo the futm ol' lb«
. ilitl ibc rai]uii«r unci loriii, in
n < iJ Hi«hu\l £lLoB is ttllvi[ed by liia
m.9 M> ■•» — >..rii ialo his otfic«, w not accord-
^^Hh) kni, Biul gealleiiucii of Ihe jury, lliere
■BJUcI^ been ■ Tcry great cootul in the
jPBHrt ol Kiii(;V beuoh ulraut tbe officer* a[
Ifcii towu 1 and Ibere wer« twu candidate! tor
thii ottc« ol miiyor, one Wigbtwick, and the
4*fmUnt Elle» 1 and upon ilie poll il appureri,
that Ellei bad etetCD roles, and Wijfbtwick
lea i HI tbal EUes wa* obuEeo uiayar by ilic
B^jorily (ifone voice: but ibe presiding officer
uut, b* ImA ft iiian wbo itu» 9|ipoiuicd id lake
th( poll ; by wbiob pull il ippetred, tliat tiib-
bw and Darby, who bad nerarbern allowed lo
ta Ihicn*!), Iiail pulled | and tben, U|i(tn lliat '
pott, Umw were iwdve voiw for Wiffbtwick,
•nd eleven ttir Clles: upon wbieb ibe uatb of
ofica was adniiuiilered, and boib oujdidutet
Goaileiueui tin ai)pl)culiun lo ibc Court nf
Kia('»-b*ocb, Hlle* by utfidaviiA ntnde it ap-
Mtr, ibal (iMibun ami Darby biiit no ri|ibt Ig
fcixiaqia ; un wbicb lb« Coart d^clarfd. llie I
fnatt wuulil lurii on Gibbon's ri|;ht; mid tben .
itMfoeMiun wiB, Whether |<cnont nxirTyini;
CneiiKu'k •taii|{hlet'» bnd a HkIiI to freedums ! ,
and Darby '* ri|{hi was lo abide ih« fate of that, j
B^ ibcy lisTe ilcclioed ibi«, and turn all Lbe
ilaiictiiol'proriDi; upon ua. We shall <
le, (■vultemen, I'litly prote every one of ,
U>y(iubywilueK»PB( iutbecourie
_ dvocp, you will hear, Ketitleiiieii,
vCreat outns oJ' inonry ntferedlu engai^e
bitten, wlio were In Ellca'a iDteretil, to
KWieblwidi. Wetball prove lu you,
m that lual. WB» ofTered Ibr one vule,
■DlargcwMimu HMJOl. for another,
w n procan Wifrbiwkk to be mayor.
'R'thtiwcii'cuiiMianiMw, seoUcnieu, two
n't iMiwd I'niui lbe L'onrt it hing's-
■iliuit ihcsQ two men; for Ibey all
anccd there wa» ou ri^ht by marrying i and
lUMi llie« <wii pei-inuK were nwoni in by Tirtne
«f UWMf HaudMiiu*'l>.
If Ittrrdixo. ifcntlemen, wealiew lliera was
* SMJniiiy fur Ellea uyoa tbe poll U taken by
■tie town-ilciki nulwitbatandiug the pnckel-
|ioUlb<y baveKlupi »u hope you 'if lake it
upoDilo'iiUii of the luwa'Hork'it poll, and find
■ ti-idiL't r>ir the defeudalit a(!cortlin|^y.
J^j. li^i/na. M»y it plaaaa your lord-
^*|hPiil jtuu iirniluuutii uf the jury 1 Ian
-- ' ' L« caM wUb Ibo dcfondast: aad
' '11 t^Avied by the Cuurl of
I) order (o jtrocure pcioa ID
RotoMv, where tlwre warelw«aalingawyw«at
uue uuTUie mii« liuie ; and tbe Cuail framed
IliiiiDlbciuaUoD, tutry which of lUi'm was duly
elected. Upon tbia tire issues aiejoioed: tai
lbe first issue you are lo try, gen lie men, la.
Whether £lles wu a jurat? Aud we shall
■bew be was flrsi elected a freemuo, and then,
ia due muoner aod form, n jural. The second
isnie is, Whether the mayor, ju»tB, and com-
muoaliy of the town Biid port ofNew-Romney,
did vhuse tbe defendant Elles mayor t OeD-i
tlvmen, in this toBn, we see,lbereare tweoly-
one voters: Wight wick stood in opputitioa lo
HIlea; the town clerk took the poll; and on
L-uitiDg il Up, there aiipeared lo be for £lles
elerfo rotes, and far Wigbtwick len [ to that
Elies was duly chosen uiayor. But aqolbor
putwa pretended to take Ibe poll, and «et down
such persons as he ibougbt fll, and amooMt
them Gibbon and Darby, as rolers for Wight-
nick ; and that cait tbe majorily of roiera on
WiKhlivIck: but Darby and Gibbon's volM
ought not to bave4>e(iit t^ken, iheir right being
li> marrying freemen's daughters) whereaf
Ibere is do such cuMoni, nor ever was, nor erer
attempted till lbe jeir 1738, when it was
set up by thii, Oibbuu : aod ibt^renpon (heCor- .
)>oratioti ordered il lo be entered in their bonks,
ibat bt waa aui lo w admitted, for that ibere
was uo Eiirh cuaioni ; n bich we sbill call out
wilne«sc*, and fully prove tn you.
The lliir-l isKue, gentlemen, is, Whether lh«
defendani EDes was duly sworn inKi the office
wf mayor, in manner and fo- m a« by hit plea
lie liBlh alleged ? Anil we shall shew you, tl^
be was swurn bjr lbe luwn-clerk, before the
mavor-
Tbe fourth issne is, Whether EHes took bis
corporal oalh, fur |he due execution of the office
of mayor, according lo lbe funu and effect of
tbe tetterv patent?
Tbe lillh issue is. Wheiher ihe defeodaal
Eiles was sworn aci'ordiog lo the manoer and
I'Drin us ilie niuyor orsaniluich is sworn.'
Gentlemen, we shall call our U'iinf>u<e«, tnd
make it plainly appear, thai these isiues an
for the deli'ndanl Elles; and then we hope
you will find a lerdictlur biui accvrdiiigly.
Mr. Mari/i. Aly lord, in order lo be ajurat
he must be a freeman.
L. C. J. Kyre. Was hea JuralF
Mr. KninDler. He acted as ajurat.
Keij. Darnell. His sciiiig at a Jurat is evi-
dence, nrm a faciV, ibit he wassfr««iusn,
L.C.J. Wdlvou admit be waa ajurat?
nir. Mank. Tbey may go on ; I shall
wake un bargxini.
8eri. Damcil. Swear Mr. Loftie. (Which
Mr. Marih. What do they call bim to t
Weobjei-tlohim.
Serj, Darnill. To pruva an aatetoUy-boob.
Mr, LofUe, is thai tb^ tntry of Ellca's «hctloii
tobeajaratF— iji/yHT. Yes. —
Serj. Darnell, (lead it.
887] 8 GEORGE IL
** John Tobke, mayor. At b eommoD as-
tmnbly held the 9dd December, 1730, mayor,
rarats, aod comrooDaUy duly elected Edward
Batchelor and Richard Ellea to be jurats.*'
Mr. Laey. The election- day is the 25th of
March.
X. C. J. This proves an election the 23d of
December, 1730. Was he duly sworn ?
Serj. Baynet, YtB, my lord. Read bis
iweanng.
Attociate reads :
** 4 Januaryy 1730, Batchelor and Elles took
the oath of jurats."
£. C J. Go on, issue by issne : first, Whe-
dier Elles was a jurat? They insnt, by cus-
tom, the jurats must be sworn every year :
prove it.
Serj. DarneU. My lord, they have given us
notice, that every qualification of the jurats wad
fineemen would be objected to.
Mr. Knowier, A jurat (so MS. Q. mayor)
it said to be an annual officer. We shall prove,
my lord, that EUet was ehooen ibr the year
1734.
L. C. J. Mr. WeDard, yoa most not talk
more than necessary.
Mr. Marsh, It is necessary to be a freeman,
in order to be a jurat
Seij. Darnell, A man b a jnrat ; is it ne-
eessarjr he bea fineeman, in order to be qualified
for a jurat?
Mr. Marsh. If the entry be sufficient, it is
needless to go on.
JL. C. /. The qualifications of a jurat are, a
jurat he must be, to be a mayor ; for a jurat,
he most he a freeman.
Mr. Marsh. These points are oflen disputed.
X. C. /. Dispute what you will ; but he was
•wned a freeman by the corporation when he
was made a jurat.
Mr. Marsh. He was sworn before the mayor
and jurats only.
L. C. /. llie entries are all so. Nothing
has been read to shew they might not swear
him. If he was sworn by the mayor and
jurats, that must be proved : we had nothing
of that in the last cause.
Seij. Darnell. The question is, Whether the
major part of the mayor, jurats, and common-
alty, did duly cbuse him mayor, according to
the form and effect of the lettera patent ? and
in order to prove that he was duly chosen, we
are to shew what were the number of jurats
and freemen that voted for Elles ; for which
purpose 1 shall call Mr. LofUe.
Mr. Marsh, We object to Loflie : he was
one of the persons who voted for Elles, and
therefore has given his opinion already.
X. C. /. I never knew it denied a corpora-
tion-man that voted ; he is a legal vntness.
Serj. Darnell, Mr. LofUe, were you present
at the last election of a mayor for Romney ?
l^U. Yea.
Sari. Darnell, Whare was it made ?
L^k. At St Nichotas.
Case of Richard EtleSf
[8B9
Serj. Darnell, What number of fraamen
were present and voted ? — Loflie, Twenty-oae.
Mr. Lacy, Are you town-clerk of Romney f
Do you keep a book ?—'Lqftie, Yea,
Mr. Lacy. Where is that book P
Lqftie. Mr. Wellard took it away.
Blr. Wellard. Here U is.
Lo/tie. Mr. Wellard and Mr. Wi|;litwick
took away the books, and Mr. Wigbtwick has
entered the proceedings of that day hinaeUl
X. C. J. Are there any entries made by yoa
of the proceedings of that dajr f
Loftie. 1 have a copy of the poll, my loid.
X. C. J. Why were they not entered P
Lqftie. Because Coates insisted I shadd .
take the poll according to the minutes tkey hU
taken.
X. C. J, And you did not think it right f
Ltfiic, No, my lord ; because tbdr had
taken Gibbon and Darby's votaa, wno, I
thought, had no right to vote.
S^. DamelL Yon take an oath; whatii
thatoathP
X^^i^ To enter faithfully and right an the
proceedinga of the corporation,
X. C. J, Yon did not make an entry of thi
Kll, bocause every body did not agree la it;
t you took a copy of the polL Rend the
oath of the town-derk.
Aisociate reads :
Mr. Knomler, Read the poll afam.
Lqftie. <« Wightwiek and Elks— The fain
for mayor—
« For Wightwiek .-—John Contas, m\.
Wiffhtwick, Batchelor, Rutton, Bassftt.
Joabua Coates, Odiham Coatea, Wilson^ Haf-
fenden, Dree."
Tlieae were all that voted for Wightwiek,
but Gibbon and Darby, who, 1 apprehended,
had no ri^^ht to vole ; and theretbre I did not
insert tiieir names.
*« For Elles .—Himself, Robert , Maacall,
Norman, Tookey, Smith, John Maacall,
Weeden, Langdon, Loftie, Benjamin Ceb^
William Gray.
Mr. Marsh, Dai)>y and Gibbon were theis^
but you did not take their votes.*- Waa nobody
else there P Did not Mr. Papillon and Welisri
send, that they might be admitted to come ts
ezeroisc their franchise of voting P
Mr. Lacy. I desire to see the poll-paper, the
very paper you took in the church, Mr. Lofhe.
Mr. Loftie produces the poll-paper, aa before.
Mr. Lacy, Did not you take another list m
poUP
Mr. Lqftie producea another.
Mr. Laey. He took one list, and then, by
Elles's direction, took another. Read it.
Mr. Loftie reads another poll.
*' For Wightwiek :— John Coales, esq.
Wightwkik, Batchekv, Rntton, Baasst
Joshua Coatea, Odihnm Coatea, WUaoa, Ha^
enden, Dree, John Daihy, Hbm OiMiwii
F^iikp, WaUaid.'' .
1
™ vptin a Quo Jf^arranto.
tr Ella :—El\es, lUwrl MiMcnll, Nor-
I'Mkry, Smith, Joliu Hnicall, Weeilen,
■Bi Loftie, Benjamin C'ubb, William
»nL Where iloet tkii weinbly
In tbe south cliancel or Sl Ni-
usual); kept
. Daractl. If Ibe
it thul r
if. Shot, to prevent people coaling;
0 liusincis.
StmlA. n'hich ofibr
;d<n>D fintf
tir. The latt-ddirernl.
0 polls did yiin
who toleil for itiia mayor. Hr hns
hit 0|iimnD ilreadj', ami therefore I
I it to your kiriUlnp, whether he h ■
tvirlenirci' Or ulberwbe we insist, the
• taken down a* pullers, Ibat tliey are
n number than he has giien an account
COotdinK to his Iltt, they are liulten;
ere niuit be lliur vntea more added, two
ch arepenoDB not numlieml by him.
lord, Darby's and GiblwnN rights '
M, il will besufBcienl'reumn Tor |iultii)g
oa the poll fur WightnieU ; and then
Btmot be mayor. Besides there is Mr.
BB'fl right, u^io was not in Ihe church,
Nthc duoT WW shut within-side; and
I'allanl was also a freeman, and he could
KM in, Oie duor bein^ shut. We ahall
rM. ^tleinen, iheir qualiRcnlion, nod
ttj could nut get into the church ; that
>nt to the door, but there was no ad-
1 to be bad ; that they «ent in a letter to
lyor, and demanded udmillanre ; and if
M been let iu, ibey had voted Tor Mr.
wick; and they bating a right, and aa-
I that right, tbete voles ought 10 be
d le tbeui.
h« first of the late king, there was Ihe
r ibe mavor of Hylb« tried before my
iMKlMfirld at this place. Two iiersons
I tboir vut«s nt the noli, and being re^
kf lb* pmiding officer, the Court wa!
uon, Ihuj were good fuirs. Am) itiere-
m bamfaly ho|« yoiir lordship will allow
M be good voloi, and, in conscijnence,
»imy will find liir us.
Laeit, Tlip istuc now before your lord-
:, wlietbcr t1>e major pari of Ihe jurat*
■mmoaaUy did, or did not.ehnie Ihcde-
it Ellea mayor ! By Lofttc's pnll it
t, thtra werv eleren voles far Elles,
•B tot WiKbtwich 1 wi Ihal, if either of
nr votn diaallowed by liim shall apppar
IDod, Ihni, gentlemen of the jurv, they
pro** ihcir issue. At to Hr. F^pilh
m flf«nau, admitted and sworn; ■
I hb vote waa refused, he tendered
nt in a nota in writini;. tianilyiDg to the
* Im f»u4 lot Wigbtwick, and "
A. D. 17S*. [890
therefore a gooil vote. And as to Dnhy and
Gibbon, we Biibmjl, uliL'thtT. heiog sworn,
they are not in tbe exercise of thi'ir olfice, and
ought to be allowed good votes. We shall call
our wilitessea, and shew the entriea efGibbon
and Dirby. — ^llr. Lofiie, look upon the book ;
il your hand-wiitiug?
IrtrtK. Ves. Itesds:
"J.Cottles, msjiir, Beit remembered, at
coan of record betd the 2jlti of Mai'cb, IT34,
e corporaiion Iibvidr been served with a
writ of Mandamus, riibbori and Darby, de-
raaoding Ibeir fn.'cdoms, were adiiiitied and
Mr. Marih. Where is Mr. Papillon and Mr.
Wellard's entry ?
L. C. J. Gibbon and Darbv were admitlcd
fore the election ? — Lafiir. Ves, my lonl.
Z. C. J. Uow caroe you, then, to refuse
ibeir votes I
Lnflic. Because I thonght there was an
oriler made, that they should not be admitted
L. C. J. Vi'vte thev elected by Ihe maysr
id jurau? — Li>itit. Never, my lord.
Mr. Wtllard.' Re&i my election, and ibcB
read my swearing.
Asuk'ihU read* :
" Nicholas Durrani, mayor. At a comtnM
assembly of Ibe town and port of New-Kom-
ney, in ihe common place, October 30, 1720,
Nicholas Durrani, mayor, Sec. elected Charles
Wtllard, an inhabilant and town-clerk, to \m
a freeman of tliii town and port ; and he wSt' i
ordered lo be sworn, more mito, according tft j
bi'olherhaod and ghuesthng." '
" December ID, 1790, he was awom and
admitted."
Seij. DariiWI. Isihat iheasumMy-bookF ,,
Mr. WtHurd. Ves.
SeiJ. Damdl. My lord, all Ibe enlries 0
sweariog these people are in the assembly*
book, and therefore it is hut a del^ated |>nwer>l
Mr. Lact/. Head the mandate tor chusiag;!
two barons to send to parliament.
AttociaU rends :
■• Whereas a mntidate for chusing im
barouE was read, Ihe mayor and jural* " ■
Mr. JIforiA. Read Mr. Tapillon's eledittf^
and swearing. *
Aaxiate reads :
*■ New-Romocy, u. mayor,
comtnnn assembly of tbe sud la» n aud port •!
New-Romney, held in the coromuo plaM
there, tbe Q3rd of March, 1731, elected DarU
Paniliou a freeman of ibis town and pottfil
nnd he was sworn and admitted, more lotiU
according lo brolherbuod and ghueslling."
Mr. JJo/J called and sworn.
Mr. Slarth. Were yon prrseut at the h
election for mayor f — DvJil. Yes.
Mr. Mar,h. Was Mr. I'apillou there t
Daiiil. Yes ; but he wns not in tbe rbur
Mr. ilfariA, Aail bow gum be nok to gti
ggl] 8 GEORGE II.
D»d4. BMDDse iteiloor wMloched.
Mr. MtTtk. Did he Iry to get io ?
Here the Chief Justice ■*■■ toU by ■ by-
■twiiler, that a pcrmn vai takiag Notes i on
WbicU be uked,
X C.J. Who is it?— Who emflnyed you ?
Give me the paper. [On which if.e Sole,
were deliTercl to him -, auil, after lurnrag
tbem o»er, he said, with Home warmth,] 1
**— Tfe my n»me in it: whom were yon em-
ed by to talie thotu Note* ?
■ -t-Und Writer. My lord. I WW em-
conccmcd in tile erent
Cate ofliUkard Ellgs,
■*"£,
B ilbdoM
ployrd by 4 gentli
of tbeae iHuei.
L.C.J. Whof
SKort'Mond Wriltr. Mr.Papillondesirertme
to attend and lake Notes.
Then tiie Chirf Jiulice called crow llie
Court to Mr. PapUlon:
L C. J. Mr. Papillon, here ii a man laLiii;
Koles that laya \ou employed h.m.
Mr, Papiltou. Yea, my lord, I desired him
IB allead, and lake Nolca.
L. C. J. Who is he M obaerre ray uarae
in tereral fiacta. 1 suppoae, I ahall ntxl
week hai-e my name in fnnt.
Ur. PapilUm. H^ lord. It *s no eommou
rtorthaol writer; it is Mr. I nerw
knew it waa a crime to take Notes in a court
wbereyowr lord»liil> lat.
X. C. J. Well, 1 hope you are the better
Mr. PapitloK. 1 think I em, my lonl ; anil
on aome occasions they have boen of great
X C. J. I am ([lail to hear that.
Wr. FapUlvn. Yuur lonlship presides here ;
so do with the papers what your loidihip
^ T^. J. No, no. Now I know it is done
by authority, if I see any thing in print, I
shall know where to apply.
Mr. PapUlon. It is no rMison to snppoK, it
•lioulil coine from me, ifjuur lordship does ;
there are greai numbers now taking Notes, as
well as Mr. and it may =iurc come m
well from any of Ihem. Mv w'J, I never was
a libeller, nor ever in my lile eiicourBi;ed s
publication of this sort. We are all lial.le to
accusations of Uiis sort: ! have seen oiany
falsboods jtrinled, liut never thuught llieni
worth iny notiw. My lord, I am not an-
■nerable: do with the ftotes what you will.
L. C. J. No ; Mioue it is your wnicr, let the
man have his paper, and go on.
The Notes being out of the Shorl-haoJ
Writer's pussession, he coulJ not take dowu
what wassail).
X. C. J. There, take down that, anil print
it too, if you will ; I don't rare ; though 1
don't say ii i; Uw, uor will justify it asauch.
Blr. Papillo-i. Here, give me tiie Notes :
let my lord have tTiem, since they gif e offence.
L.e.J- No, I will 4M haTe ttiem. Let
\}tt roan have his paper agan, I
by authority.
Mr. Paor/ton. My lord, pray il" wbai yet
please witli Ihem ; cut tbem to pieces, MfW
ibeiD in the fire.
X. C. J. No, no. Let hiin go on, MDce M
'*]llr. Fapilha. Then pray kt bim goes
without reflectiona.
Mr. X«ey. Pray, Mr. DoOd, where did ihg
atsentble f
Dodd. They went from Mr. Coalea'a.
Se>i. VamtU. Did Blr. Papillon aid Mr.
Wellard go with the people to the church r
Dodd. No.
Mr. Martk. Waa Mr. Papillon thewF
Dodd Yes.
Serj. DarntU. Why could nut he go I*
tlie church, as well as Coates and the nMJ
Dodd. 1 do not know.
Serj. DarwU. Did yon seethe mayor p
from the house?— DodJ. Yes.
Berj. Dame'/. What tiimdid they go?
D<idd. ittwo o'clock. ,
Mr. Manh. Is that i he usual time F
Dodd. Yes. . , ,
Mr. Marth. How long was the doot leclri
hefore Mr. Papdion and Mr. Wellardcame?
L. C. J. Did (he mayor and jurau see tbm
coming f—DiK'd. I do not know-
Serj. Darnelt. Is it not usual to lock tk
door on audi occasions ?
Dodd. Yes; and not to open it till the rite-
"seri. DarntU. Did Costes or ffigbtnid
Jive orders to shut out Mr. Papillon or H'rf-
iird i^Dodd. I do uol know.
Serj. DjrnWt Was any body shut oul b(-
sides?— CodJ. Several.
Mr. KtumUr. How loitB was Mr. Welhnl
In lonu belure the election 1
Dodd. About five weeks.
Mr. Kuomler. Whoee house was he st iliim*
that time ?—Do(/rf. AtOihIiou's.
Mr. K»ot^Ur. How long was it allK ik
door was shut, that Mr. Papillon and Sir. lin*
lani came to ap|)ly to get in ?
Dorfiy. .A minute or two.
ilr.KmB.Ur. Why did they not ai^lj "
the Juor-keeper to be let in f
Dodd. I <to not kuow.
Hr. Maril,. Did you ever know a fi«B»»
reiiised, lliat came and applied to be let lO, »
little after the door was abut?
Dodd. Yes.
Skij. Buynet. Was any particular mesnp
sent lo tlie mayor by Mr. Papilluo or Sir*
Wellard ?—Dodd. Not tlial I know of.
Mv. Wellard awom.
yit.Manh. Mr.Wettard,yDu werewithBr.
Painllun : Pray. gi« "n acconiit ol his goiaj
10 church, and his demand W tome in.
n'elbiTd. I tieiit wHb hjm to the chwebi
where the election was. In order'to volt *
Wightwick. As we were g»i«»f.^»r' *
wiuieu iut enminedi aod dcMTCd Wt w ■■
itpon a Qero ll^arnmto.
-4l^tH^ dttj vere rrcemeo; bul nn lonn no
raiftOU can lie *iJmitU!il to tolc ; and llicreliin
tkry ware tefuMiil ty llie txiilt'.
Out, ^nllEmcR, tl>cy Itll jf'ou, we. Iiate doni
lU wc CDuid; we teat io leture lu llie nuij'ur
Knl came in tlic cliurch dour, in order to f^e
ill, and were rcCiisei] ; anil lhereti>re their toIel
oivtit Dut to tia otijecti-il tu, as llicj' bUuiiI on the
i'leate, gcollemen, la nUerre bnw lliia ^fia
1|U bem cooked uii IJelweeu ftli. I'aptUori aod
Hr. tVellaxl. Wellard t«!l> >ou, llic lellcra
were wntUu licrnre ilioDer oa llie day of tbc
Meulian ; they are nurd fur iwird llie Eune,
Ivtkr Tur letter. The siibscriptloD ii exactly
fai Ih* aame words; "We reluseil il, Jobn
CmIh, ma^or." Cuslegtiad projioaeilittollie
body, and iliey reiuscd it, JIul Coutes i«
Ur. Hqiillua's inlereat, and TOlcs Tor hint : a
ht My Uio, We refused tiiia ? No, it is only
giT« a handle ■>■' coniplAial, that men liave been
nojiwllj^ relosediBiKl tLak iherefure llie eleclioD
!• vuut: ibuugh I uufer yet beurd thai a ini
wa> to be admiited to vole iiv letter, or that
tote waa to b^ put into a pocket.
At to Uie case of Hytlie, the men were si
tuallv lliere at ihe poll, and oHered Itieir voti...
ftr Itw candidates, and were acluall)| refused
•y ibo presiding officer ^ and if he reluees, the'
Mtaon has Im coaiedy : but 1 uerer befure
Msrd of I yotc put into a |kk±cI. If this in to
b« admitted, there can be uo cwlaiiitv in any
dcdiun. A corporate budy assembleci, are nut
10 be broke id upon, aAei' ibe doora are locked,
and the keys tok^ io (asluthellouseof Com-
aunt) to preveot coDfueiou ; and therefbrc all
rigtit nf toting is excluded, when tbis body it
once aasetnbled. Beside*, ihey dined with
Coalea, and iniiibl hate gone in with him, anili
Ibeteat of the Ireemeu.iFthey wnnld : bul, in-
Htfltil of that, for parUcular purposes, they aay,
Tfo ; we will nnl claim it in |>ersun, we will
diWnd it bj letter.
tlpon ibe nhule circumtlaaces of lliis ca^e,
WB bopc, griiilemen, it baa been clearly made
ontloyou, Ibal Elles had the majority; Ihul
Om alrreu ikiat voud tor him weii! legal votra,
and that but leu legal tolea voted fur Wight-
wkk; and therefore, geullemeu, that you will
Sad a terdici for us.
s..ri f;.,„N,,, My io„j| the gentlemco of
- ■■■■ li;jve ^eavouted tn make out,
: > filers were excluded ; and thai,
I '.irby beio)C sworn in, though
, I led by the aosembl}', they are
Io Lc luekL'J no aa if ihey had giten their
ITbc right of foiing ii, to be elected by (be
■•jor, and jiiraU, aod comiiiuiially : bul they
mwn natM' elected, or duly aworn in, hy the
■■yor atiil jiiimta J it ttaa done by Mandamus:
apd ibotigb it waa agreed and reeolted, at a
»>aiinoo aaaoiubly, lu cuntecl i(, ytt the ma^vor
uut two jurats iwore Iheiu in ; hdiI Iberetore
il iraa right to refuvd ibem their voieii ; and
lb«o UiTrc in plaiuly a luniutity tor EUet.
1, » u Ml. FapiUott and Wal-
A. D. 17S*.
iord's TOtes, if there be any fnnd or C
io thai matter, their rules are to be set axide:
«od they came for their rit(iit, alUr the churcli
dooi' was aliul. It ts agreed, that, on the ele«-
tion of a mayor, the keys of ihe church ar*
luiddouo on Ibc tuhle, and the duors areahtit;
this, genilemen, is ilic constitotioa of the town.
The cviilencM It'll you, tbey were all met at
Cualts's, and went aller dinner to cliurcb. Id
vole for Wightwick ; but the mayor wouldnot
admit liiem. How could thai create a disturb
aiice ? But he did nol admit Ihem for fear of «
illslurbsoce, and Ihev were kepi out ; and oiqr
part of (he atsembly are to be excluded, if
Ihey come loo late, aa io the lloaae of Coin-
maiiner as if they had toled. And Ibis, geo-
tlemeo, we admit, is law in the Houseof Com-
mons, but WM Defer determined to be law in
any of the courts in WestmiD«ter-hall: it la
the practice (here, but neter at common hw.
fio that, genlleroeu, there is a plain m^ority of
those atisembted for tlie <lefenilaQt Elles ; and
Lherelure we hope you will find that he is duty
etected.
Mr. Kmmler. My lord, Ibere is an aiby
iipoo tbc assembly -book, where Gibhon'a aud
Darby's right were taken into consideration by
the whole body ; and it was unanimously re-
solved, that they had no right ; and, to make
it the more soleinu.the mayor, jurats, aod com-
monalty subscribed it; and Coatea, and the
others who admitted them, hare also subacribed
II. Ilead lb* enlr^ uf the 1st of March, 179S.
X. C.J. It ligni Res nothing, an act in 1118:
Ihey gave their Judgment, what signiflea it i
Sir. KnovUr. Rrad the entry.
Auoeiate reads :
*' New Romoey, Msrcb 1, 1153. Reciting
(hal (iibbon and Darby had threateaed to bring
eir Mandamus, tn he admiited to the frcedoin
this town and port ; it waK retuNed Io returh
conusel nhall adrise, and ihesuiilo be de-
fended at Ihe charge of this coqioratton."
Mr. Marth. I hope, my lord, we are proper
reply.
L. C.J. You are not regular to reply. Yoa
laid down a rule Ihe beginning of Ibis dreuit,
aud now you do not keeji Io il : but I wiH hrar
you, regular or irrqfular.
Mr. Marili, My Intd, we humbly intist, the
It entry is no eiideuce.
L. C. J. You are ihv master of ordsi ; I
submit (D yon.
Mr. Alan/i. My lord, I )ud not objcctul,
butlliat four people who toted far Wigliiwick,
lliat liad no disijualiftcdtioD, an- lelV out of ihoir
poll, by their ouu eiidence it apjiwrs, that
this was upuuaTight,iolui«iagmarri«dal'ree-
saQ'a daughter ; and 1 aubmil It to your liiid-
iliip, that a reuululjon to canteat that nifl'*
iiirely can never lake ii away, especiallji if
iflerwardi it ajipaan to be ■ ri)[hl not cou-
839]
8 GEORGE n.
Case tfBiehard EBetf
[8fl
L, C. J. ft should be a custom fmnred at a
^foundation for tliis rhr\u.
Mr. Marsh. My lord, a point of law de-
pend io» on the demurrer, we submit, whether
your lordship will not save it, in case we lay
proper evidence before ^our lordship to support
It: for, if the charter puts them on the same
freedom with Sandwich, and <he custom there
IS, that the daug^htej nf a freeman, by marry-
inpf, entitles .the man to a freedom ; then it will
be a point, whether the charter warrants thai
custom P A pretence of rit>fht. however, they
bave ; the entry of Gibbon and Darby is by
their own officer, and they were sworn in by
the fnayor and jurats.
And, my lord, it is admitted on^all Rides, that
Mr. Papillon and Weilard are freemen ; and if
they did all they could to got into the chiirch
ana vote, then, my lord, we humblv insist,
they are as much voters as if they had been at
the poll, and were actually in the case of the
men of Hythe mentioned before.
Therefore, (j^entlemen, if the mayor told Mr.
Papilloo and Mr. Wellard, that if they came to
the church, they would not be admitted ; and
said to Mr. Papillon, You aru our member, do
not insist upon it; and when they offered
themselves to vote, refused them ; we humbly
insist, they are as good voters, as if they had
been at the poll, and actually voted.
^ And as to Gibbon and Darby, they had this
right by marrying, and were warranted by the
charter.
X. C. J. It is not regular.
Mr. Lacy, My lord, the gentlemen of the
Otlier side object to the fact laid by us in point
of law, that we do not come up to what we
contend for by our plea, as to the sole right :
but if Darby and Gibbon had a right, other than
by election, where they are sworn in, 1 would
Aubniit it to your lordship, whether, till dis-
qualitied, they are not in the complete exercise
of that franchise? There may be rights that
come not in by election. Mr.'Serjeant Darnell
says, that the majority of those present are to
chuse the mayor : but, my lord, if we did all
we could to get in, as has been fully uroved to
year lordship and tlie jury ; we humoly insist,
we are entitled to a vote as much, as if we had
been actually present at the poll, and had given
our votes.
It bas been said, that, when the business is
begun, ntibody is to interfere : but, my lord,
ive were present by letter before : and if they
read it not, that was not our fault.
Mr. Smith. My lord, we admit, that all per-
sons are to be chosen by a majority of freemen
•present ; and we humbly insist, Mr. Papillon
and Mr. Wellard were present in point of law ;
and, in fact, in the House of Commons it never
vas otherwise.
My lord, in the case of Ashby and White,*
the question was, whether an action would lie
for refusing a vote? It was resolved that it
woald, because the common remedy in the
f See ii in this CoIlectioD, toI. 14| p. 695.
I House of Com inons would g[ire no rdief. As!
I the authority of the men ot H^the's case wh
fully with us : Darby and Gibbon being a^
I mitted, we apprehend, when they voted, tbcy
' were in the exercise of their franchise, and ue
therefore frood votes.
L. C. J. Gentlemen of the jmy, tbe qoei-
tion upon this issue is, whether the deftrait
Elies was duly elected by a majority of tk
jurats and commonalty of the town and poittf
New Uomney ? And it appears from tbe cfi-
dence, that 21 freemen being asSctnUel,
Wightwick had 10 voices, Elles had 11 ; «i
that two people were present, whose vola
were not taken. Darby and Gibbon. It wastt
the 25th of Ma*-ch ; and these two people wen
admitted bv the mayor and jurats, on prodofr
ing a Mandamus, which is a pcecept from •
superior court ; but that confers uo right, Mr
piend*^ the thing, if there be no evidence of a
prior right.
They tell you, on one side, that Darby and
Gibbon being sworn in by the mayor and ja-
rats, they are put iii posKussion of their orooe,
and are to be regarded! as people that have a
right in the election of mayor: but, ucleai
some such right (>e proved, such as birth, elec-
tion, or some other right, the Mandamus con-
fers none.
But they tell you, this is a particular right,
supported by a partirotnr custom : and there-
fore the question is, Whetlier this admittanes
can give a right?
Now, admittance and swearing can give oo
right, without a previous right. A Mandamns
may be brought, when tiie^ were never elect-
ed; and such admittance will do nothing of
itself.
But no such custom has been proved, and
the cor|>oration has protested a^iost it ; and
therefore Darby and Gibbon had no right to
vote.
But they say, Mr. Papillon and Wellard bad
a right ; and if one more vote be added to the
poll, then Wightwick had it.
They were certainly freemen ; but yet tliey
could not send in their votes bv letter, or vote
otherwise than personally ; they must be cor*
poruUter con^ret^ati.
Mr. Papillon was tuld, the mayor would not
admit him — Wliattheoi? Sliould h«> not then
have endeavoureil to go in with the rest ? I
think he ought, if he will give his vote ; there
can be no reasonable excuse.
The mayor having told him, they would not
admit a foreiirner ; they tell you they sent in
letters, and did what they could to get \\\.
But they have not done what they could :
for they should have attended the mayor, and
gone to the church, and got in with him and
the rest: but they do not come till after the
church -door is shut; and the evidences all say,
that, after the church -door is shut, nobody can
be admitted ; and that, when they go in, tbey
lock the door, take up the keys, and then WH
body is ever admitted. If they do not come in
time, therefore, Ibey endnde thansBlfCiu
Ml]
upon a Quo Warrafdo*
A. D. 1734.
[842
IWy moat be there, and come at the usual
tnne ; and if thej did not, the y exoludcd them-
aehree : and is the hiw, or the method of eleo-
to be changed lor them T
Mr. Pftpillon's— (I would not insinuate — )
idiog the letters is attended with odd drcum-
ccs. The letters are given to Wightwick,
he is to delirer them to Coates ; then they
art refused by the assembly ; and aflerwards
Ikm letters are returned into their hands again,
with a note, ** We have received this letter, and
il has been refused."
Gentlemen', I think the letter will do no-
.Aiag ; they were wrong in their judgment ; and
BOC eomiog in time,they ought not to be let in,
my more thim any bocjy else. A man cannot
MM in his TOte by letter; be must be present
in the a«embly.
A9d therefore neither of these four gentle-
~~ had any right to vote, in my opinion ;
then the majority is tor £UeS| and he is
^■ly elected.
Tcvdict for the defendant.
Seij. Darnell, My lord, the neit issue is,
ihat he was not duly sworn. — Mr. Loflie, 0o
you know whether Mr. Elles was sworn in
major of Romney f
LaftU, Yes ; he was sworn in by me in the
chnteh, in the manner as other mayors are
Mr. AfarsA. As to the oath to be taken by
the nayor, you are only ministerial : did not
the nayor say to you, VVightwick was the man
that was to he sworn in mayor ? Did not
Coates tell you, *' I administer the oath to
VTigbtwick,'^ and strike Elles's hand, off the
hook.?
Laftie. No, not that I heard.
Mr. Lacy, Did not he order you to swear
Wwhtwick ?
Juifiie, He ordered me to swear the mayor.
Mr. Lacy. Did be not order you to swear
Mr. Eiles P
Lqfiic, Not to my knowledge.
Mr. Smith, Did Coates say who he thought
was mayor?
Loftie. Yes; he said Wightwick had the
'^rc':
C. J, Where two people are sworn in,
the right must be in the man that had the pos-
•esak>n of the staff.
Mr. Batdielor sworn.
Mr. Manh, Were you present in the church
the day the mayor was chosen ?
Batchel4n- Yes.
Mr. Manh, What declaration was made by
Coatea, as to tbe person chosen mayor ?
Baichelor. He told the town clerk, Wight-
wick was mayor ; and said, *' I would have
joo set down Darby and Gibbon as voters
Mr Wightwick," and called them over : but
lioAia would not set them down, because it
•faion hia ladinatioB. Coates give the
staff to Wightwick; and said, « I resign this
to you ; you shall be the mayor ; you had tbe
most votes.''
Mr. Manh, Who then called for the oath?
Batchelar, The old mayor.
Mr. Manh. Did be call on any one to admi-
nister the oath ?
Batchelor, Yes; be bid Loflie administer
the oath to Wightwick ; and then Wightwick
and Elles laid their hands on the book, and
Coates said, He wonki swear Wightwick only»
and shoved Elles's hand off the book twice.
L, C. J. Read the clause in the charter that
relates to the cbusingofamayor; the ques-
tion being, Whether the mayor or town;-clerfc
should administer tbe oath ?
Auociate reads :
" The said late queen by letters patent grant-
ed, that on Lady Day, in the chanoel of St.
Nicholas, one of the jurats should be chosen
into tbe mayoralty for the year ensuing, and
should take his oath, in manner as the mayor
of Sandwich takes it."
L. C, J, The mayor mustadminister the oath.
Ser}. Darnell. My lord, the oath is always
read by tbe town-clerk ; and I humbly appre-
hend, It is taking the oath, when it is read by
him Inpresence of the mayor.
L, C, J. The mayor must consent to the
oath ; he is the judge, whether the proper per-
son be sworn, or not. Tbe oath b to be admi-
nistered by the old mayor ; and it appears it
was against his consent; he thought another
elected, and struck Elles's hand on the book.
Seij. Darnell, Suppose a man to take an
oath to qualify him for an ofiioe ; shall a jus-
tice of the peace refuse it ?
L, C, J. Can a man take an oath that is
not administered to him ? The town-cleork has
no more to do with it than you or I. A man
is guilty of perjury, if a clerk will administer
an oath, when a court forbid him. Besides^
the mayor delivered the ensigns of his power
to Wightwick.
Benjamin Cobb sworn.
Mr. Manh, Were yon present at the deotion
of the mayor? — Cobb, Yes.
Mr. Manh, Did you see the oath adminis-
tered?—CoW. Yes.
Mr. Knomler, Was Elles sworn ?
Cobb. No.
X. C, J, Did not the mayor deliver his staff
into the hands of Wightwick ?
CM, Yes, my lord. ^
Mr. Langdon sworn.
Mr. Lacy. Were you precieiit at the election
of tbe mayor? — Langdon, Yes.
Mr. Lacy. Was the oath administered to
Wightwick? — Langdon, Yes.
Mr. Lacy, Did Coates make any objection
to the swearing Elles ?
L, C. J, Did Coates think Elles was chosen
mayor ? — Langdon, f believe not.
JL C. /. Who did Coates think was mayor?
MS] S GEOttGE IL
Langdon. My lord, he said Wi^j^twjck was
mayor, on account of Darby and Gibbon.
Mr. Marsh. Did VVightwick take tlie staff,
or did Coates deliver it to £lle8 P
Langdon. Wightwiok had the staff, and
went home with the staff.
Mr. Wynne. Did Elles walk as near thej
.staff as the other.
Langdon. 1 believe he did.
Base qfUickard ElUi.
[M
Mr. Gray sworn.
Seij. Bayna. Were you present at the choice
•f mayor ? Did Coates say any thio^, or strike
Ellcs's hand off the book? Was you nearP
Gwy. I was present ^ he nerer touched
bis hand.
Mr. Lacy. Did not Coates order Wightwick
to be sworn P
Gray, i do not know he ordered any body to
be sworn.
L. C. J. Had Wightwick the staff io his
hand, when he was sworn ?
Gray. No.
L. C. J. Where was it?
Grmy. it lay down upon a tomb-stone.
L. V. J. I take it, he ordered the mayor to
beawom.
Gray. I do not know hn thoughts.
Mr. Marsh. Is it usual for the mayor to have
the staff in his hand, when swofs?
Gray. I do not know.
Mr. Marsh. Whom did he n»me?
Gray. 1 heard him mention nobody.
Mr. Lacy. Whom was Wightwick declared
navor by P
Uray. 'By Mr. Coates.
Mr. Laey. When did the mayor say thisP
Gray. At tiie time of tlie election.
Mr. Lacy. Mr. LofUe, was yon near Coates,
when the mayor was sworn ? Did he strike
EUes's hand off the book?
Loftie. Not that I saw.
Mr. Thokey sworn.
Mr. Lacy. Were you present at the election
of the mayor?
Tookey. Yes ; I was ?ery close to Mr. Coates.
I did not hear him declare Wightwick mayor,
or see him strike Elles's hand off the book.
He mentioned Wightwick, and said, Wight-
wick should be sworn.
Mr. Marsh. Did he order him to be sworn,
or deliver to him his staff.
Tookey. He said, he should be sworn ; bat I
did not see him deli? er his staff to him.
Blr. Halfenden awofn.
' Mr. Marsh. Were yoa present at the awnr.
ing Mr. Wightwick mayor ?
Halfenden, Yes, I was praeent, and mr
Coates shove Eiles's hand from the bosk. I
heard him say he would not swear Elles, sad
saw him, after swearing?, deliTer the staff It
Wightwick ; and I saw Elles's hand atmokiff
twioe.
Mr. Marsh. Did Elles walk eren with 4e
mMyotf'^Halfenden. I cannottell.
Mr. GUfbon sworn.
Mr, Manh, Were yon present at tlie' awnv-
ing in the mayor by Coates ?
GMim, Yes; he gave ordevs-to take Ik
poll ; and after it was taken, he aaiied, Wb
was mayor? Loftie told him, Ellea; Wllan
said, Wightwick. Then Coatea aaitl, ifal
Wightwick wasfchoeen mayor, and sbmiM'li
sworn; and then Coates deli?ered the staff H
Wightwick. I saw it delivered, and sawCoslH
shove Elles's hand off the book, and heard Ida
say, " Mind, I swear Wightirickmayer."
Mr. Marsh. We shalltrouble your kwdihip
no more.
L. C.J. (Gentlemen of the jury, theifeitioa
on this issue is, whether the detendaot Blhi
waa sworn mayor or not ?
It must be done by his predaceasar.
Loftie says, that Coates ordered him to avear
the mayor, and that he read the oaCk : V tkh
was done by Coatee's order, then he was wd
sworn.
But, if it was done contraiy to his order, aal
he dedared another man, and shoved BllBi%
hand off the book, and said, ** Take notieft, 1
swear Wightwick mayor," and not the ether,
and ddivmd the staff to him, and iKd aH be
could to oppose the swearing Elles ; thenEUs
was not sworn mayor.
The town -clerk cannot swear the major;
and the evidence is strong that Coates opposed
swearing Elles. The man that has the riabi,
)ie is the man that roust be sworn ; bat noasDOt
the former mayor can swear him.
The question therefore is, whether hewn
sworn by a proper aathority ?
If you thmk him sworn by a proper autba-
rity, and that Coates meant that Ellca sbsald
be the mayor, then you must find for biro.
Bat' if you think he meant Wightwick
sbonM be sworn mayor, then yoa nraatlbdftr
Wightwick.
Verdict for the Ring.
dmtfltaug MUnw
A^ihvim.
[m_
(97. CaaeoTHnrirrnfooBf^^nniidfi; agaiort the Mayor, Jurats
md Gomraofud^of tiieTowo'acd'Ftoit'Df HiftSTiifGB, in tbe>
Counly of Siuacjtt DefeaJantot IOGsohobiII. a. d. 17S6*
>t (he nt- Jalitae|dtw«rf«ilM oT 01
, 1736, iKfnre ilie oftlto «W't««B «b4 pnt, bi
« F%ilip he rd HarilnictMs MMt4hHWr,'nd allBtMD p^iiw • rcuamU*
konlCUcf JoMicaor hit Miu«»(^'a C^'*"'' flMjMto MWlfcd'aJ ■mm MtotbepllM
tf'UagVbvwh, msHMiilirauBfbr ad- nri'«0g»'«raMcr die fiwmai of tb*- laif
-aiMv O* FMnliff M bo ■ pRomn of
■MttaMtiopomMMBoT ■ MMem thtre ;
•Uibc - -
li>gB lAv TriMtjIVnn, 1736, 1
niihelMimiliMaovtiMir retivi
MMleaiu
-- dag^ Bli tlMKii|MM iwite b joDCd.]
rlUAS befeK our lord tlie king: a[ West-
^Mt^tf'BilluT Term, id ibe gibyearof
l^rtitB cf Mir.iovereigii lord George (be 2J,
■JhftgnM of Ood, of Great Uriuia, France,
pjllJ^. Ui^, defender of ibe liuUi.
It Ibe Pleas of tbc Kjn^-noU.
t, (hat ii
MillMi Mlbday ef NHcmEer, in tlie eth year
Uk BrijpBofflatMMfcigDlord George tlie
i, Inr Iba graoa of God, ol' Great BHtaiii,
|MM,Md;Mafed UDfe^tetateoftbe Uth,
mAmmknU hr4. A^W, at Wattni
j;t,JB.hi> county of Suuex,
li inibeea wwda ; imi ii to lay,
1 M, bj ibe KTELCe of God, of
tfVnaot, and Irelaod king, it-
J fitib; latbe Dit}or,jur«ls, aitd
al^ tf the town and port of UMlittg»,
Viva^Mjuf Sanex, greelio);: Whereii»tbe
MiftMMi «M port is an ancient town and port,
M^Wkof IW fire ancieiil porta of thii ktaff-
4nc aat wheteas (bere is, and lime out ufi
iMib^kbie*, a cerUin OBdent and laud-
lUtfrntan, iwed and approved witliin the «aid
%lk-M4'P«n, tbat every persoD, bein^ the
dliAMUDCany freeman of (liciaid town aad
(■^MtbarawithJo the wid town and port,
**' '' ' ' ' ' □ and swearing of bia fatlte*
TMm tatn. lOJO. Ann. 353. 369. and
M enCoiyoralioiu.
■m Ibta BoroDffh of Haeiinon arose Hie Oue
rfWward c. Tfiatcher, (S Term R^. 61) in
MUlitinademMitbatwbereapcnaii, beniK
i^pMMMB of a corporate vmet, aecejited
Mkr oOca incooipalible Oienwitb, tbe (of
teiBea br mch acceptai»» became Tactnt.
MmIo tiiHit wemitobeii
L.4* tbe office lail accepted b«
..S Burrow, 1615; andKydon Cor-
,'toI. 1, chap. 3, § 3. ltw» also de-
la Baward V. Tbatcher, that the offices
tai towa derk of Hottingt were ia>
tatnteCfMtt MriWHM by ym t» be adiaMeir
mtwmtmt'tan Hmjkta aad office of oM of
Ibe ftewieC the sriJ'Wra and pert, aeeerd^
ilVtSlllB'tariMlflfllMSBU tr
WB^
tbe iaU leini and pert, tni wae bora whbii-
lhe»M to«« and port; after Ibe aABimw
and iwgwhui of Wt flillHr lote tbe phes
and olHte i.I' one of ibe freefBOD ef Itar
snid towD aud port? aBd wberea* the mi&
Henry Moore, by vktoe tbeieof, and npenpgy-
\ag a reasoMble fine aeeetilhig lo the aid ca»*
toni, ought by you an le be attnhWd and «mM
into the place and eflaeofoneef Ibe'fienrin
ofihe said town Bnd'parti ytl yen, weU knew-
iag the premiBsee, M eel iegeidfa|; yonrdiH*
intliUhehnlf, havenot lejrel admitted tbcMM
Henry Moore into lb* BBid phe« aad Office ef
oneol'thc freemen of Ibe eaid town aad perl'E
nor hare yon adatinUaKd Ibe oUba to tb»
sRii) Henry Mooro, lAicb are le tbat cai*
awnBy-adiBlnhmwd aad tdnn, riAoagbyett
often bare been reipiMted ao to do, by AenW
Hoary Meeref bol fane refined, and yet d«
reftieej te-adnrit and wfittK tbe said Bnn*
'MooT» iatolbeaald plaiee andofficeor enew
'tiie freenen of tbe saldloini UK) port, allbongta
,|Im aaU Henry Heere baa tendered to yjn w
ireaMnable fine on that behalf ; in centenlptDf
of liim Ibe.
«M Htary Hoore, andte
r of Wa estate ae we be*)
iDjury or US estate ae we have bseftjir-
formedrronhiscoinriiiMton: wethareKm
being williof tbsl One- mi speedy joifce btf
done to the said Bmmj Mbere in this behalf
fii It iiriiasniielili) iln iiniwuiidjTin lij firinlj
iMSiniog, tbeli immedlalely after tbe feeuptof
(MiotR writ, yea dwwiilioaldetay.nMntfar
nld Henry Hedt^-pafiof a reaaonMe fine^
^Aaiti or oaie to Iie«ABitiedj tbe Slid Henry
Hdote into tbe said place and vffien of ooMif
Ibe ftenoNa of tbe sdd 'town and port; to
witii an tbe liberHee, pritilegn, '
.enolnmanls, and covmedilies, tn a. .<«_.«
Ibe ssidtewB and port bdoi^g attd apptr-
taiuBg } an^ tbtt yon adminitter, or catac to
be administered, to Ibe aald Heory.Moore, tbe
oatha wbieb are in tbat case oraalV^ adminis-
tered and taken acccrrding to the said 'onstonr ;
or shew to ns eanse to the contrary thereof;
that the same complsiBt mtj not; by your d*-
&idl, be repented to ns; And boir yon shsll
fcmmeatodthit eu^wrltj w«hnih «.yv9b^
847]
10 GEORGE 11.
Cote of Henry Moore.
[648
US at Westminster, on Friday next, after tbe
octave of St. Hillary, returning then to as this
our writ. And this you are not to omit, upon
peril that may fall thereon. Witness Philip
lord Hardwicke, at Westminster, the S8th day
of November in the 9th year of our reign."
Upon which said Friday next after the
octave of St. Hillary, before our said lord the
king at Westminster, the said mayor, jurats,
and commonalty of the said town and port of
Hastings, in the said county of Sussex, return-
ed the said writ as folio weth ; that is to say,
** The answer of the mayor, jurats, and com-
monalty of the town and port of Hastings, with-
in mentioned, to this writ, appears in a certain
schedule to this writ annexed : We, tbe mayor,
jurats, and commonalty of tbe town and port
of Hastings, mentioned in tbe writ, hereunto
annexed, do, according to the command of the
said writ, humbly certify to our sovereign lord
the king, that there is not, nor timeout of mind
bath b^n, any such ancient and laudable cus-
tom, used and approved within tbe said town
and port, that every person, being tbe eldest
son of any freeman of tbe said town and port,
and born within tbe said town and port, after
tlie admission and swearing of bis father into
the place and ofBce of one of tbe freemen of
the said town and port, hath a right, in respect
thereof, and also upon paying a reasonable
fine, to be admitted and sworn into the place
and office of one of the freemen of tbe said
town and port, as in the said writ is alleged :
and, for this cause, we, the said mayor, jurats,
and commonalty of tbe said town and port of
Hastings, have nut admitted, nor caused tu be
admitted, neither ought we to admit, or cause
to be admitted, Henry Moore, in the said writ
named, into the place and ofHce of one of tbe
freemen of tbe said town and port, together
with all tbe liberties, privileges, franchises,
•moluments, and commodities to a freeman of
the said town and port beloiigiiK; and apper-
taining; neither have we administered, nor
caused to be administered, nor ought we to ad-
minister, or cause to be administered, to the
said Henry Moore, tbe oaths which are in that
case usually administered and taken, as by the
said writ we are commanded t-i do."
And hereupon, upon tbe same Friday next
* after the said octave of 8t. £Iilary, before onr
said lord tbe king at Westminster, en me as well
the said Henry Moore, in tbe said writ and
return named, by Henr^' Mastermun his attor-
ney, as the said mayor, jurats, and commonalty
of the said town and port of Hastiutrs, in tlie
said county of Sussex, in the same writ and
return mentioned, by Henry Wairoiid tlieir al-
tomey. And tbe said Henry Moore, having
had Oyer of the said writ and return, saitii,
That tor any thini; above alleifed by them, tiie
said mayor, jurats, and commonatiy, in their
said return to the said writ of Mandamus, bo
the said Henry Moore ought not to be barre/l
from having a peremptory writ of Mandamus,
in order to be admitted and sworn into the said
plioe and offiot of one of the freeineii of the
\
said town and port; becaase he laith, thit
there is, and time out of mind hath been, nch
anrient and laudable custom, naed md ap-
proved within the said town and port, that
every ueraon, being tbe ekiest son of any frpe-
man or the said town and port, and bom within
the said town and port, after the admission aud
swearing of his father into the place and offiis
of one of the freemen of tbe said town Md
port, hath a right, in respect thereof^ and slis
upon paying a reasonable fine, to be adoultid
and swoVn into the pkice and office of one sf
tbe freemen of the said town and port, in did-
ner and form as in tbe said writ of Mandaaoi
is above alleged. And the said Henry Mqsis
prayeth, that this may be inquired into by^tbs
country ; and the said mayor, jurals, andcoo-
monalty pray tbe like.
Mr. Clarke, May it please your lordibip,
and you centlemen of tbe jurjr ; Henry Moois
is tbe ptaintifT; and tbe mayor, jurats, sad
commonalty of tbe town and port of Hastings,
are the defendants. And, gentlemen, this ii s
Mandamus, directed to the defendants, the
mayor and jurats of that town and port, to ad-
mit and swear in the plaintiff Henry Moore
into tbe place and office of one of the freemen
of this town.
And, gentlemen, the Mandamus aels forth,
That the town and port of Hastings is an sn-
cient town and port, and one of tbe five ancieot
ports of this kingdom ; and that there is, sad
for time out of mind has been, a certain aad
ancient laudable custom, used and .approved
within that town and port, that every penoo
being tbe eldest son of any freeman there, sad
born within the said town, after the admiswm
and swearing of bis father into tlie place sod
office of one of the freemen of the said towa
and port, has a right, in respect thereof, sod
also upon paying a reasonable fine, to be ad-
mitted and sworn into the pUce and office of
one of tbe freemen there, according to the
custom of that town and fiort.
Gentlemen, tbe Mandamus further sets forth,
That the plaintifl* Henry Moore is tbe eldest
son of Samuel Moore, one of the freemen of
the said town and port, and was bom withia
the town, after tbe admisbion and swearing of
his father into tbe place and office of freeman;
and that the plaintiff, by virtue tbereotj and
upon paying a reasonable fine according to tbe
custom, ought to have been admitlctl andswon
by the defendants into the place aud office of a
freeman ; but that the defendants, contrary to
their duty in this case, have refused, and sull
refuse, to admit and swear him, nltbongh be
has teadered to them a reasonable fine on thit
behalf.
And this, gentlemen, the defendants are laid
to have done in contempt of the king, to ths
great damage and gi ievance of tlie plamtiff, aod
to the manitesi injury of his estate.
And therefore the writ proceeds to conmaad
the defendants, immeiliately^ upon tbe plain*
tiff's paying a reasonable fine^ to adoMIVii
00]
vpM a Qfio Warrmto.
A. D. 178&
[850
him into the place of a fi-eeDum, or to
ahew cauie wb j tbey do not
To this writ, gpentlemen, the mayor, jurati,
mod eommonalty have retiirued ror answer,
That there neither is, nor for time oot of roiad
kai been, any such ancient and laudable cus-
tom, used and approred, within the town and
port of Hastinipt, as is alleged in the writ ; and
tbia, they say, is the reason they have not ad-
aiitted tlie plaintiff.
Gentlemen, upon this issue is joined ; and
Ike only question vou are now to try, is. Whe-
ther there be such a custom in the town and
Ert of Hastinffs, as the plaintiff has laid in the
andaraus? U therefore, gentlemen, eridence
ii laid before you, that there is, and time out
of aund has been, such a custom, you will
please, gentlemen, to find a renlict fur the
plaintiff.
Sir Thomoi Alm^, May it please your lord-
ship, and you gentlemen of the jury ; i am
aba of counsel of the same aide with the plain-
tiff; and you will please, gentlemen, to oh-
aer?e, that the single issue you are to try is,
whether there now is, snd time out of mind
baa been, an ancient and laudable custom in
Iha town and port of Hastings, in the county
of Sussex, that ever^ person, being the eldest
80a of a freeman oi the said town and port,
and bom within the said town and port, after
the admission and swearing of his father into
the place and office of one of the freemen of
liw aaid town and port, hath a ri(;lit in respect
theraof, and also upon paying a reasonable
Ana, to be admitted and sworn into the place
and office of one of the freemen of the said
town and |>ortP
This, gentlemen, is the issue you are now
to try ; and it will not, I believe, be necessary
to trouble you with an account of the Cinque
Porto, and tbeir pri? ileges and customs.
But, gentlemen, the matters of proof we
■hall lay before you will be of three kinds.
And the first which offers itself to your con-
sideration, arises from a very ancient record,
called tlie Customal ; which is a rery ancient
deed, without any date; it being an usual
tfain^ for ancient deeds and evidences to be
without any date ; and this Customal is the
vole and law of alt the Cinque Ports.
Gentlemen, this Customal is so old, and
goes so far back as the year 1573 ; it contains
59 Articles. Our rii;ht arises upon this Cus-
tomal ; and therefore I will beg leave to read
Ihe title, and some pnssawfes out of it, to you.
** Hie sequuntur Consuetudines Quinque
#irtnom, et enrum Membmruui, ^ tem|iore
aon extat memor' bom' usitat* et ap-
Gentlemen of the jury, the words we ground
mr right upon are these :
Art. 34. ** Possnnt Majores et Jurati, Hallivi
to Jurati, el Jurati, in quolibet Portu et Mem-
km obi M«oret Ballivus de coiumuni elec-
1 taerit, inunesentia Commuaitatis,
et facera lioeros thbos modia :
VOL. XVII.
'* UttO Bodo, per NaUvitatem infra Liber-
tatem snam, ai pater suus, tempore nativitatin
•ue, fuit liber:
** Alio mode, per Libernm Tenementam per-
qnisit' :
•< Tertio, per Emptionem.
** Et nound', quod nnllus gaudebit liberta-
tem alicujus Portus, sire Membri, quousqne
aacramentum auum preestatit, quod esse debet,
k die illo, usque ad finem vitn snse, bonus et
fidelis Domino nostro liegi AnglisB, et here-
dibus snis; statutsque et libertates Uuinque
Portuum, et spedaliter illius Portos sive Mem-
bri ubi commorstor, pro posse suo niaintene-
bit ; obediensque Majori et Juratis, Balliro et
Juratis, vel Juratis, semper erit ; semper pa-
ratus tam ad scottand' et lottond', si quse tozat'
pro communi utilitate fuerint, quam in armis
pro defensione inimicorum Domini Regis, eum
Ker Gubematores ipsius Portus sive Membri
abueritin mandatis; etquod non audiat ali-
quod ad deteriorationem libertat' predict', aire
ad reprobationem Majoris, Ballivi, et Jurato-
rum, ubi commoratur, vel eorum alicujus, nisi
ipse inde eis daUt notitiam. Sic se adjuvant
sancta sanctor', 6ic,
** Possunt Majores et Jurati, Ballivi et Ju-
rati, et Jurati, in quolibet Portu, 6cc. recipere
et facere liberus tribus modis : t
** Uno modo, per Nuiivitatem infra liberta*
tem suam, si pater suus, tempore uativitotis
suw, fuit liber'*
That, gentlemen, is the point we ground
our right upon ; the first right. If a person
be the eldest son of a freeman, and bom within
the said town and |»ort, after the atlmiasion
^nd swearing of his father into the office of
one of the freemen of the said town and port ;
we say, such eldest son is intituled.
«^ Alio modo, per Liberum Tenementum
perqui«it\
" Tertio, per Emptionem.'*
So that, gentlemen, by this S4th Article of
thin Customal you see what the ancient law
anil usage was ; that the eldest son of every
freeman, under these circumstances, is inu«
tuled to his freedom : and therefore we say,
that the plaintiff Henry Moore, as the eldest
son of Samuel Moore, has, and he is un-
doubtedly intituled, under this right, to his
freedom.
And, gentlemen, as this Customal mentions
three distinct methods of making free, viz. by
birth, by a freehold tenement, and by pur-
chase ; so it has made a manifest distinclion
between the freedom acquircil by birth, and by
either of the other two ways.
For, gentlemen, the fine that is paid by the
son of a freemnn, upon his hein;r admitted
and sworn, is only 6n, Qd, That is the rea-
S4inablr fine, that is always paid, when a man
is intituled as the plaintiff is : but all other
persons, whether they are made free by a free-
hold or by purchase, they always paid 13s. 44/.
or, however, always more than the pcrsoa
who was admitted as the ahlctt son of a fttc*
man.
SI
S31] 10 GEORGE II.
BIy lorrl, and srentlemen of the jory, trben
■you lisive beanl tliis Custoir.al (which we shall
lay beiore \ou) read, we shall then read to yoa
flume biitiirredv ut' entries out of the corpora-
tion-Lor»ks ; t'roiii whence it will appear, tliat
the eldest sons of frecineD, under the circum-
citances of the present case, have heen alwayR
admitted ; and from whence there will result
»o uniform and clear a testinionv in support
of the plaintiiT's right, that we defy the gen-
tlemen of the other side to produce one entry,
in any of the corporation books, to contradict,
or at least to impeach, our entries.
Gentlemen, these are old entries, many of
them in queen Elizabeth's ti me ; and, there-
fore, they are not so exact in the stile as
niudern entries usually are. Sometimes the
sou is said to be admitted, *^ Quia pater ejus
Jilier erat, et ip^ve natus fuit infra libertatem."
Sf onetimes the stile is, *^ Q,uia maximus natu
filius." And sometimes, ** Uuia iilius liberi
bominis."
And« gentlemen, by coroparinjir the times
nf their fathers' admissions, and the births or
baptisms of the persons admitted (which we
shali prove to you by authentic copies from
the pariah ret^ister- books in Ilastiufifs), it will
appear to you to be the most cle:tr and stroo^)^
caae that ever came before a ju\y.
(jentlemen of the jury, aoothcr part of our
evidence will arise from livinjif wituesves ;
\t ry ancirnt men, who, by their own knuw-
\e6^e and observation for 50 or 60 years
toji^ethcr, and by conversing; with their ances-
tors, many of whom lived to he eighty and
ninety years old, will prove, that this has dI-
wavs been the custom, that the eldest son of a
frcetnaa, burn uithin the liberties, and alltcr his
fatlior v/.'.s made free, has always been intituled
to his frecdfKii ; till the otiier day, when the
ri:;hts of the town were t;> be ])laycd into a
narrower compass, and no man was to lie inti-
tuled to his freedom, but at the will and plea-
sure of the mayor and jurats. And these wit-
iiessss, i^entlemen, are not only ancient men,
but persons free and disinterested ; not a lew
men disl'ranchised to-dny, to serve a particular
Eurpose, and be made free a^^ain to-morrow:
ut our witnesses arc men of f^reat age and
experience, not interested. We doubt not,
^ therefore, gentlemen, when you have heard
our evidence, that yon \^i\\ be of opinion, that
the plaiutitr has an undoubted ri^ht, as trie
ehlebt son of a freeman, and find tlic custom
for the plaiuiiflf acc<»r(iin&;ly.
Blr. Slrunge. May it please your lordship,
and you gentlemen of the jury ; I am also of
counsel for the plaintiff*: and, my lord, this
case has been so fully and clearly opened by
the gentlemen who have gone belrre uie, that
1 shall not take up any of your lordship's
time in stating any of the circumstances in the
plaintiA^'s case ; aud I shall beg leave, gentle-
men, only to observe, that the single question
BOW to be tried by you is, \%hether the custom
in the town and port of IJastings be, that
cwry pvboui bun^r ib« eldest ion of a lrc«iiiaii
Case of Henry Moore f
[S5f
of the said town and port, and bom therr,
afler the admission and sweartpg of bb fatbtr,
has a right, in respect thereof, and also upcn
payioflr a reasonable fine, to be admitted into
the office of one of tlie freemen of the said
town and port ? For, gentlemen, if this be tbe
custom there, the plaintiff Noore is witbia
every part of this custom.
In this case, gentlemen, three things are ts
be proved :
First, That the ptaintiff be the aon oFa
freeman that was admitted and sworn into tbt
franchise of this town.
ISecondly, That he be bom within the liber-
ties of the town.
Thirdly, That he be born nnder this cir-
contstance, after tbe time of his father't swear-
ing and admission into this fiecdom.
And we shall apply ourselves to lay befon
your lordship and the jury such an evideocr,
as shall fully make out toe custom, that ibt
eldest son of a freeman, bora within iba
borough, is, upon paying 6t, Bd. as a rea-
sonable fine, to be admitted and awom into iba
freedom of the town.
My lord, and gentlemen of the jnry, (iit
particular evidence we shall by belbre yoa,
has been minutely opened to you ; and I
would beg leave only to obserre, that, as I
humbly apprehend, the custom now insiiied
on by the plaintiff is a sort of common rig;bl
of all the subjects of England, there bebg co
corporation in the kingdom (1 might say, upoa
the face of the eardi,) but where tbe sons of
freemen, born after their fathers' freedom, are
intituled, according; to the several usages of
the resoective boroughs where they claim
their freedom ; so J do not know, 1 own, of
one instance, that I ever yet heard of, to tbe
contrary.
But, my lonl, as we do not rely on that
general custom, but on the particular evidence
which has been opened ; we shall begin with
an old record in 1573, as ancient as the oM
Customal of the Cinque Ports. We shall
then, gentlemen, read to you tlie entries of
persons who hare been admitted as sons of
freemen, for near 200 years past ; and tbca
produce to you several ancient living wit-
nesses, ^ho will s|>eak to the usage and
custom, and will prove to you, that it has
been so time out of mind : and then, gentle-
men, we hope, that upon hearing these records,
and the opinion of the old witnesses, yOtt will
find a verdict for the plaintiff.
Mr. Marsh. Mv lord, we had a rule for In*
specting tlic corporation -books; therefore tbey
are not in our hands : hut we have taken ao-
thcntic copies of the old customal and entries
on btamp«, which \fe are ready to prove*
Swenr IMr. Craosion.
Alt. Gen. (Sir John Willes). My lord,wt
have the original in our hands ; and if wa
produce the original, they cannot read their
copy. But, my lord, we say, with great inb*
mission to your lordshipi that iJio original itaitf
is uo evideuctf*
853]
Upon a Quo Tfarrafito.
A. D. 1736.
[854
Lord Uardwitke. Mr. AttiHtiey, tome li^ht
shoold be (pven what it is, and then 1 sbali be
able to jndi^
Mr. Strange, If your lordship pleases, we
may as well pro?e our copy.
L4>rd Hardwicke, If the original is beie, I
cannot read the copy.
Mr. Cranston sworn.
Mr. Strange, Where had you that book ?
Cranston. From the town -clerk of Hastings.
Mr. Marsh, Where was it kept ? Among
the corporation -books and records r
Cranston, Yes.
Mr. Marsh. Turn to the 34th Artkle.
8ir Tho. Abney, My lord, it is an ancient
book, kept amonif the other records of this
eoqKwation ; ana I never knew a trial of this
iDml, but the ancient books of the corporation
were always read.
Alt. Gen. My k>rd, I humbly submit it to
vour lordship, that, as they open it, such a
book ought not to be read in eviaence ; besides
that there are several other objections to it.
My lord, they open it as the Customal of all
the fcinqne Ports, but not as the Customal of
this borough in particular : and, my lord, thb
Mandamus takes no notice of any privileges
that betong to all the Cinque Ports ; and there-
fore the Customal they ought to produce, should
be the Customal of tnat particular town : bat»
to ahew that this will be evidence, they should
make it appear, that there is one concurring
eustoro throughout the whole Cinque Ports.
And, my lora, though there are some general
ctmtoms which do affect all the Cinque Ports;
yet, with great submission to your lordship, I
must beg leave to insist, that this particular
Customu, in case it could be read, no more
affects this corporation, than the customs of a
county affect every particular borough or
hundred in that county. lu order to make
this evidence, they should prove one concurring
costom throughout all the Cinque Ports.
But, my lord, if tliat were so, I submit it to
your lordship, that this cannot be rcsd as evi-
dence.
The gentlemen of the other side say, that
it is an ancient record, because it is without
a date ; and therefore it is ancient. And this,
my k»rd, would have been proper, if they had
bad the old, ancient Customal itself to produce.
And I submit it to your lordship, that they mtut
cither produce that Customal, or shew that it
cannot be come at, before this can be read.
This ia only an entry in the corporation 'books,
in the year 1573, of an ancient Customal. i
Thia, mv lord, is what they would offer to
yeor k>rdsnip and the jury, as evidence : it is
aaly a oo|>y; and it it be only a copy, I
kambly insist, they ought to produce the cri-
nelft'or shew that they cannot come at it.
OBt I Mieve they will be at a loss to shew,
k wee ever entered at all by the corporation's
enier : finr there is an entry just before this, in
Ike jeer 1573« of a mortgage ; there are abun-
ef ■enps put tog^er, which nothing at
all can be made of; some in 1609, some m
1593; a hundred things gut together, and
entered at different times, by nobody knows
who. 2fon constat^ but this pretended Cus-
tomal may be sewed into the book ; for
there is nothing entered in this book, that can
be given in evidence. If it was the Corpora-
tion-book, there would have been other entries,
of the manner of electing freemen, officers of
the corporation, and members to serve in ptr-
Lameut, and other corporation-affairs : but, be-
cause it is founil among the corporation -papers,
therefore it is to be given in evidence ; though
found amongst a medley of a hundred sorts of
trifling things, in no wise relating to the corpora-
tion, and that belong to God knows who. In the
book there are copies of mortg^sges. not oi-c of
them from persons who stood indebted to the
corporation in one farthing; an account of a
rental of a noble lord's estate ; the resolution of
the judges upon the statute relating to the poor ;
a hundred miscellaneous things got together,
nobody knoll's bow, or why : my lord, I say,
when it appears in this light before your lord-
ship, I submit, that as it does not at all ap|>eac
what this medley of a hundred things are, be-
cause it is found amongst some |iapers in the cus-
tody of the town-clerk, and tliere is one thing
which relates to the custom of all the Cinque
Ports, and a hundred other things not relating
either to them or to this borough, whether it
be any evidence at all. I submit it therefoie
to your lordship, in the first place, that as, upon
the face of it, it appears to hu only a copy of e
thing ; and as it appears that tinng does not
relate to this borough in particular ; and as it
does nut appear what book this is, nor how it
came amongfst the books of the cur|mration ;
and as it is only a collection of useless miscel-
laneous papers ; I think it ought not to be read.
Lord Uardwiclic. If I could get off trom
reading this book lawfully, yet from the nature
of this cause, 1 must look upon the book. In
cases of this nature, I think if, prima facie^
proper to be read in evidence. Tiiere may be
objections to the reading it of different kinds;
some, from the nature of the custody in \y liicli
it has been kept ; souic intrinsical, from the
book itself. Those from the nature of the cus-
tody, when, where, and how lung it has been
kept, are proper against reading it at all : but,
when they arise from the book itself, it is im-
|N)ssible to say it should not be read ; because
the Court cannot judge whether it be proper or
no, till they have heard it. 1 think, therelbre,
it must be read. If, upon reading, there ap-
Iiear to he any material ohjfction^ to the book,
[ will hint them to the jury, when 1 come to
sum up. ^
Alt. Gen, My lord, we submit it to your
lordship, that it is torn and defaced, and in many
places not legible.
Mr. Strange, Why did not you keep it
lietter P This book has not been in our cwitody.
If you do not take proper care of your cor|>o-
ration- books, are we to be prejudiced by your
neglect ?
10 GEORGE II.
859]
XiOrd Hardwicke, Is that a true copy f
Cranston. It is, my lord ; 1 eicamiiieo iU
Atsociute reads :
** Ilasiin^, S5. QO xApril, 1667. lo pablic
court caine Thomas Loveli, jun. eldest son of
William Lovell, late jurat, deceased, and prayed
the fraDchise of this town ; to which, for his
fine of 6$. Qd, he is admitted, took his oath, and
kissed the mayor^s right cheek, inore solito."
Mr. Manh, To prore that his father was a
freeman, shew the entry of the 6th of Septem-
ber, 1636. Is it examined ?
Crantton, Yes.
Auocialc reads :
** Hastings, s«. Memorand', qaod 6th Sep-
tember, 1636, came William LoTell, and prayed
to be admitted into the freedoms of this town
and port, and took the oaths, more solito, and
was admitted accordingly."
Mr. Strange, My lord, his father had been
four years a jurat, when the son was baptized.—
Read the certificate of the 10th of February,
1640. Is it a true copy ? Did you examine
it ? — Cranston, I did.
Auociate reads :
*' 1640, February 10th. Baptized Thomas,
ibe son of William Lovell, jurat."
Mr. Filmer, My lord, the next instance is
William Batcbelor, eldest son of James Batche-
lor. He was admitted the 2d of May , 1669. —
Read that. Is it a true copy ? Did you exa-
mine it ? — Cranston, It is ; I examined it.
Associate reads :
'* llastiii;;s, ss. 2 Mali, 22 Car, 2di, 1669.
At this election and assembly, William Batchc-
lor, eldest son of James Batcbelor eldest,
freeman above-named, at his humble request, is
also made a freeman, and admitted into the
franchise of this township, for his tine of a
demi-mark, and thereunto sworn, and kissed
the mayor*s cheek, moresolitOy^' &c.
Mr. F'dmcr, My lord, he was baptized the
17th of July, 1630— Read that certificate. Did
you examine it ? Is it a true co])y ?
Cranston. It is.
Associate reads .
«' July 17, 1036. Baptized, William, the SOD
of James Batcbelor."
Mr. Filmer, My lord, his father was admit-
ted nineteen years before, 17th September,
15 Jac. 1, 1617. — Read his admission. Is it a
true copy ? Did yon examine it ?
Cranston, 1 did ; it is a true copy.
Associate reads :
*' 15° Regis Jacobi Imi Jacobus Batcbelor
admissus est ad libertatem hujus villoe et oscu-
lavit malam dextram Majoris, more selito, pro
fine suo 13«. 4(/."
This James was the father, and he paid a fine
•f 13i. 4d, because he was not admitted as the
•on of a freeman. He wu Miiiiitted by a free-
koldi or by purchaw.
Case ofHenrif Moore^
[SW
Mr. Clarke, My lord, the next indancewv
shall trouble vour lordship with, is Wdliim
Parker, jun. lie was admitted the 9tb of Mtj,
1670, for a fine of 6s, Qd. — Read his admisuus.
Is that a true copy ? Did you exanaine it f
Cranston, Yes ; I examined it.
'< Hastings, ss. 9° die Mali, 39 Car. S, 167a
Assemblat' tent' ibidem coram Majore tiUc ct
portus Hastings nraedict'.
** William Parker, jun. eldest son of WiUiain
Parker, jurat, came here in court, praying b»
freedom, &c. which is granted bim for a Urn-
mark ; took his oath, and kissed the major's
cheek, more solitOf** &c
Mr. Clarke. My lord, we have a certificiteof
the son's baptism, the 14th of Auptst, 16li
— Is it a true copy f — Cranstots* It it.
Associate reads :
«* 14 August, 1644. Baptized, Williin.tbB
son of William Parker."
Mr. Clarke, We shall now shew year Joid*
ship, that his father acted as a freeman ox
years beibre the biitb of the son, and as a junt
two years after. — Is that a true copy P Did jot
examine it ? — Cranston. It is.
Associate reads :
ta. 14^ 1638. Ad banc diero Johannes Btiipy
electus est in offic' Mojoris hujus vlUsepmboc
anno sequent* "
Lord Hardwicke. Wiio was present?
" per voces horura liberomm bomimtv
villce preedict', videlicet, Nic. Staplus, Bk,
8taplus, Wil. Goldhani, Wil. Chapman, Jobto-
nis Sar^nt, sen. Wil. Turpine, Ric Wbedcr,
Johanius Harys, Wil. Di^hton, Tho. RainoUs
Sam. Gawen, Geo. Fletcher, Ric. Wyotcr,
Hen. Lasher, llumf Blinkcme, Jo. Hitbrt
Mich. Lasher, Phil. Girdler, Wil. LuDiTonl,
Geo. Easton, Ric. Sarc^nt, Sack. Franks, J^
Sargent, jun. W. Parker, Jo. Wynter, Rtf*
Marshall, Tho. SteVenson, jun. Jo. HollTbooe,
llo. Phillip, Dr. Ellis, Mnrci Pontes, Wil. Lo-
▼ell, jun. et Jac. Batchelor : Qui quidefi
Major sic elect' sacrameutum suum jpntM
corporale ad offic' illud exeroend' prout deo4|
more solito," &c.
Sir T. Ahney. The next person we thll
trouble your lordship with, is ■
Serj. Etfre. Was any body eUe admitted ^
that time ^
Sir T. Abney. There were nine made free.
My lord, the next is John Fantley. He wu
admitted the 5th of December, 1674. — Is it t
true copy P Did you examine it ?
Cranston. I examined it ; it is a true copy.
Asiociate reads ;
«* Hastings, ss. 5 Decembris, 1674, 96 Cv.
2di, Assemblat' tent' ibidem coram filmsit
&c. villce et portus Hastioga pr«licl\ in pwoa
cmia f euit Johaimes SalmoO) elpelii r '
mj
nra fl Qko ^lUfdMfOr
A. D. 17Sd.
h^jwvniB; JihMMiFiBflty. jw. rt WBlwl-
■■•6eMwrkjm.«t'riaMUiiiiliir,*dlier(,|it«-
dW SaloMB BM 13i. 4A at prndici' Fanllcj
A.M.ak pnidiel^O«UMrC«.U.qaUfiluMn>
|ilr' «ar*' Bbw' ; fd amnm Aamutibdan-
■■inrBliiii, m BMtuD dolniD Ui^orii awiilk-
Mntat, man ■orii^"&c,
Sr r. Jlmy. H; lord, Iha ikthn of Faader
dtted a ftMOwn the 8ih of JniyTlSse.
iba MD iru b^tiacd the ]3tb of D«-
ittlurty-fonr jMnbaTore b«
MU, which ma th«511idf
. 1074.— Bod tba certiacUe at bii
U ti • trw oopj r
- Itk^
*ni Willi. «■ 13 IlMembv, 1640. B^-
tai, JabiTutfer, Ibe aoo of John *iid SUr-
BrT.Jfauy. W«ih>nDowriiew jvnrletd-
tkip, ibai liis faibor ma admhtBd lo hia frn-
tem ifaemhol'Jiiiy, IMS, IhirtMn vmib bafiira
Ihe tiinh of bis Km.— Beid tba tktim
HO. Is il a true copj f Did yoa a
Crosttoa. 1 iliil.
JuDciote reads;
" flBBilDi^, n. JnUi 8, l0tO. JVhamea
Tulky a<)iniBsu« cat «d libcMtem hqus jUkt,
fm fine 13;. id."
8nj. £yr.;. Theratha flna ia ISt. 4A
Sir r. .dt^'iey. TUab Iba fittber.
Strj. £yr<. That ia « very malarial 4Uar-
ate. Tbesoa'iifttie.ial)«. acf. but B*ei7 body
ihuiiadiuiitcd Ly aoy other right, paya for
kntaelSi. id.
Wi. Strange. The fioe of Si. SJ. ia a ptrti-
HlnindulL'ence to the MD* of freaoten, and all
tibm paid i:i;. 4d, or Bma.—Vty tord, the
but ioitaiice is (Ulip Bayley, the ddeat aoD
•r JohD Bajley. Ha wai adlniUed the lOlh
«f April, l(i9l ; lie waabofnthe I4th ofHay,
lUg.— R^iid his adnumioD. Did yon eza-
aine it f la il a trne copy F — CraiMfm, Il i*.
Auofiaie reads:
" Ayii\ 10, 1091. ft W. aod Har, Haating;!,
tS0ff
ffiiyar of llnKtinj,-s, for ni* flna af,fl(. M. wai
■dcniued to ilie I'reedom of tbia lowu and port,
br Thomas ly>Tdl, mayor, Edward Hilwardi
liieharil Walls, and Joho Medhonl, jorati ;
vtratDok his oath, and kincdlhe^yo^B right
tbtrlk. more solilo, and abo Icwk the oatba of
•BegiaDce aoil supremacy."
Mr, Stmge. We ahall now pradaee the
">icei<iryorUt Uutbm, wbieh waa
'May, 1600.
. ltwa«UM»thofHay,1667.
H, atnmge. Bead the certificate of the
^UfXt lM7,of Hiilip Bayley'a baptiam.
"a atamiae it f la it a true copy t
- Hay 19, 1M7. Baptiaed, Philip, Ihaaoa
of Jahn Baylay and Anna hia wife."
Mr. Slramgi. My lord, we thall now read
the copy of the eotry of the 88th of April,
1C50 ; whirdby it will appear, John Bayley
hia lathar waa then a rrreman. — la it a true
oopyf DMy
Cnaaton
e copy.
!aof Ibcai
AuocUlt reada :
" BaMinga, u. The election of the mayor
ef tha towD and port oF HaMinge, the SSlh day
of April, 1650, in the coarl-hall of the aama
town, aeoordingto tha nae and cuatom thereof
Hme ODt ef mind ntcd, &c.
" At thia dav waa choara Thoma* Delrn
into the offioe or mayonlly of the x
tar Ihe year cnaaing, by ilie vuccl
fracman of theaaid towD fulloviDg:—
Hr. Strange. Who wai preaentF
" That i* to aay, of Richard Wheder,
WiUiara DiRhlan, Richard Sar^enl, len. Pliilip
Girdler, John Ladwr, William Barber, Hark
PoDlea, Jamca Batdielor, Daniel Dowae,
Jamea Laabcr, gem. Drew Riciiardson, Tho-
maa Janet, joEnlSpey, finmuel Smershall,
Joho Fyaaradn, Ricbard StevcntDB, Jamea
BedBmei, Willbm Geerey, Robert Bartey,
Tbomaa^yd'er, Daniel Stevens, .Tnlin BrunneT,
John.Bayley.jon. Thamaa Penbuchle, Edward
HildriiV, Sinion Waters, Jamea Chowe. Ralph
Baraicb, John Sboeanitb, John Fanlley,
PMarSlaabyiHMlb."
Hr. Maah. Hy lord, the next inatanee ia
Jeremiah Redaoiea. Be was admitted the lllb
of January, 1S91.— Look out that. Did yoa
examine it r Isit atme copy?
CrnitBM, Itii.
jfaMCM<0 reads :
••Haalinga, u. Hemonndnm. The lllh
day of January, 1691, before Mr. Mayor, si-
eiated by Philip Loiell, Joho Stefens, and Dr.
Peter Fiat, iurata, came Jeremiah Redamea
and Philip Girdler, and craved to be admilteit
into ibo fraedom of this town aad port; and
they were accordingly admitted into tha free-
dom, and look the oath of a freemaa, and also
the other oaths, aad kiwed the mayor's ri^hl
cheek. More (oJilo f and fnr a fine paid, via.
Philip Girdler, a mark ; aod Jeremiah Re-
damea, beioff tlie eldest aon of a freeman, half
a mark ; which waa ixir' to the cbsmberlain."
Mr. AfanA. My lord, tbe lime of hii bap-
tiam waa Ibe 9d of Jauuary, 1655.--Read that
certificate. Have you examined it f Is it a
truecopyf — Crontton. Ilia.
ilMocidte reads:
" Bastings, u. January 3, 1655, Jeremiah,
the SOD of James RedameB, was baptised."
Mr. Aforti. Hy lord, James Redanwa was a
^aeman io April 1649.
Hr. Clarke. My lord, the next inataDce i*
Thomss Boyoe. Ha was admitted as en eldest
-863] 10 GEOUGE 11.
Lun) HarAaicke. You mult ihew J<
u bom after ibe t'llber'
Cote of Henry Meore,
fSN
iryou would npulv this ioUa
Mr. Ctarki. My lorJ, t
James ReJames.tlie' '
will bticff Ihal
, . . hI as a freeman
the 3Stb of April, 1649, six ;ean before tbe
•on wai born. — Look out that eotrjr. It it a
true copy 7 — CraH$laa. Iti*.
" IJasliog:!, u. The eleclinn of tlie mayor
of the town and port of Histtni^, tbe 98th day
«f April, ICSti, in the cuurt-hnii of tbe lame
town, accordinep to tbe use and custoco there
litre out of miod uted.
" This day waa chuseo Thomas Delves into
the office of mAyoralty of the same luwu, for
(be yeur eoiuini;, by tiie *oice« of these free-
men of the said tnnn ; that is to «aj, of Ri-
chard Wheeler, &c. James Redainea, &c." ut
Heij. Evre. Read il a^aio.
Lord hardaicke. Il w only mendoned aa a
-fact.
Mr. Clarke. My lord, the neit instance is
Thoma) Boyce, admitted as an eldest son the
SGth of December, 1691. lie hki baptised the
»dnf August, 1671. — lUad bis admissioD. Is
it a true copy ? — CraaiJon. it ii,
Auoeiale reads:
■'Hasiinga, u. Memorandum, That the S6th
day of Ueoetnber, 1601, befiireMr. Mayor, aa-
■isted by Thomas Lovell, Philip Lo*el1, Jolm
Siereiu, and Dr. L'eter Fiat, jnrata, came Tlio-
tnaa Boyce, jun. Kichard Bruadbridge, Benja-
min Meadow, and Tho<na!i Wheeler, and craved
to l« ailuiilted into the frcetlom of tliis loun
and port ; and they were nccordingly admitted
into the frecMlcim, and tooii the oaths of free-
men, and also the oaths of allegiaoce to thpir
niaje«lies king' William anil queen Mary, and
kisited tbe mayor's right clieeb, more toliCu;
and ior a line paid, *iz. Thomas Boyce, jun.
■ud Richard Broedhridse, beiii^ frreoK^ii's
eldest suns, paid each 6f. ad. and Benjimin
Heado» and Thomas Wheeler, 13i. 4c/.each ;
which wan exlraet' to the chamWrlain. And
fiirasmurh as the said Thomas Bovpp, jnn.
Bichard Umsdhriilire, and Beiijamiii Meadow,
*n not yet boiiNc- keepers, their friends lia»i!
undertaken and promised for tliom, that tliey
aball pay witut scut and lot Khalt he assessed
upon thein, also wntch, wanl, and Ksrcli, ami
do all duties incumbent npun IVfimen, viz.
Tlinatat Boyce, for his son Thomas Uoycf,
KD. and John Stevens, son of llcnry, Ihr
tchard Broadliridge and Benjamin Mcadotr."
Mr. Clarke. My lord, he was baptized the
3d of Aus[UEt, Kin. Read tbe cerliiicata of
Lis haptliim. I* it exaiuiued f
Crantlon. Yes,
AttBciaU reads :
" Uastinifs, u. 1671, Ang^ust 3il, bajilized,
Tbamis, the sou of Thomaa Uoycc."
tHi. Strange. Mow leul tba ftduiiasioa of
Thomas Boyce tbe hiber. Did jog e
it t is it a true copy?— tfr. Craatfoa. It ii.
<■ Hasting •«. Aasemblat' lent* ibidciD Vf
die Norembris, anno rconi regis Doatti Carali
secundi, Aaglm, Sec. 15* 1603.
" Hastings,*!. Heiaorand', quod 5' die Df-
cemhris, hoc anno prRdict*, venerDUt Tbswt
Boyce el Willielmus Genoer cor«ia majnn el
Juralls in plena curia, et pet' seipsna ad fibers
tem hn^us vilis admitii ; et admitlunliir, it
osculati sunt malatn destranj Hajoria, et n-
cramentum suum tunc ibidem prwstiterapt,
more aoliiu, pro fioe ulriusque eoriuD ISi. 4^*
Wr.Cljrkt. My lord, Ihe acxt iDstaaeeii
Steplien Peregne. He was admilted the lltk
of Auirust, 1716; baptized Ihe 39th of Jui>
May, 108:1. Read tin sod's adniani
il a Iruecoiiy? Have you examiMditf
Cranttua, les.
AaoeiaU rewls ;
" Hasting u. Cur' tent' ihidetu nudeeiiw
die August), aoDo regni Regis nostri Gcorpi
Imi Bls|friB BritaoniB, Bk. teriio, enno ITIt>
'■ Memorandum. Tlie 11th of AiifOB,
Stephen I'eregoe, jun. was iwoin a freeman ef
this town, tiurt loUlo, i/e. at the Bel] ian i»
HaSiogs l>efure the mayor and jurats, and «iJ
Gt. ad. fine, as bein^ the eldest son of a Ree-
and the reason of his heinif now smta
t- fivre.
T. Abntg. 8iqihen I'ereftoe.
J^rd H^rdirickc. Wliat, is tbe fine St. Sd.?
cop.
: the eldest si
rertificale of his baptism.
? Did yon examine il T
aiiiton. I did.
AiMKiate reads :
» Jaouary 39, 1690. Baptized, Slepb«a,llii
ion of Stephen a ad Maripiret I'erfgoe."
Mr. Clarke. The lime nf liii falher'y li-
mission was the 13lh of Mny, 168S.— Ko'
that. Dill you esamiue il >' Ik it a Irue cuiif ^
Cramtoa. It is.
AMociale reads ;
" llas(ia^s,M. 12 May. 1GI33. BeloTCtht
mayor and jurats, caiar ^iicphi'ii I'eregoe, ifi
prayed lo be udmilled into Ihe frvcdnni of lb
town and port; whereupon he is admitted to
Mr. Filmer. Hy loni, Benjamin MeldoKi
admiiled Ibesih of .Uay, 17-^1, ia the neH.
Rrad his admission. Did yonexannelbMt
Ik it a true copy t — CVaFUton. Yes.
Aaoeialc rends ;
>< Ilasiinsv, tt. .\t Ihe cnnrl of record Mi
theeih of Ainy, 1791, Henjnnirn Headoir,j[ri.
was, wilh the unanimou; coiiw:nt anil appiMS-
lion of the luajor and jurats, msits a InmH
U
asq
- Upon a Qw IVarrmto.
Se^. Eyre. By tb« nnaniminit consent or
Alt mavor and jilriti, he wu msde free.
Mr. Fi^cr. Hy iurd, lie was ba|rti>ei1 (he
Uih of Aui^tt, 1097. IleaJ the MrliBcatc.
Did j'Ou namiiM it ? I* it k true copy I
OanitDA. Itil.
Attofiate mda :
" IIa«ihigi, u. 9S Aesiist, 1C9T. Baptized;
Bt^anun.aan of fienjioiin aod Meadow.''
Ur. FUmtr. My lord, hia father'* admiiuon
m the a&tb of December, 1(191, six yean
brfire Uie Urth of the fon. Head that. Did
j«D examine it P la it ■ true copy F
Crouton. I did.
" Haalinga, m. Meinnranilnm, 36 Decern-
her, lG9i, before 31r. Ithijor, amiiated by
TboDiaa IJofdl, Philip Lovell, Jobn Stephrns,
ud Dr. Peter Fiat, came Hiouias Boyce, juii.
Kicbard BnudbridKe, Benjamin Meadow, and
Tboniaa Wheeler, and craved to be adinitted
■to the freedoms of ihis town aud p;irl ; nml,
kA the oatlia, and nere admitted according-
ly," pTMit tupra.
LkJi Hardmicke. Whatdo you read thatfor?
iit.SlraKge. My lonl, to shew that Beo-
jnin Meailow was a freeman ao many
£n before the birlh of Benjaoib Heodow,
«UaM*on: He came, ami [irayed lobead-
luUed,aad took the oath*. My lord, our neil
HMOa ■ John Barley. He is not inentioiied
hit entry ta the eliU'st sod, but as tlic con
•fw^aman, ttbo was free; aod fiomtheoce
w'mht, that the man had no niber toni.
U^ Harditickc. Who ix that?
Mi.Strangt. Jahn Barley, my lord. He
■MadmiUeil ic May, 1G0». Wc cbuse to
Mllieni loKCther, tmitigb we are now tfone a
MMtod years hack. lUail his idniiBiiaii.
IW you examine it? Is it a trne copy ?
Crantoii. Yes.
JUBcUle reads :
".HsMmoB.ii. 6ari Jactbj 1° 1608. Memo-
'. nwian, That on tlie 7th of Hay, hoc amo,
JAa Barley and Richard Kempiall were ad-
ailtid |0 the frsedom and lilierly of this town,
Utwere awom, and kiased Mr. Mayor'ariglil
4|Ai more toiito ,- wlioae fines appear upon
Mtheadi."
' Mr. Strmge. See the Bae of 6t. Sd. paid by
Jbuiiatt reads :
I ^"John Barley, Hislings, quia pater sans
^ kr howa, iileo, secundum consueludtDcm,
Ui nils est Si. 9d.
" Kempsalt, 13t. \d."
ft.Bd.f
brd BMrimeke, Wbil WU Kempsalt'i fatS
TOU XVII.
' A. D. ItSe. [808
Mr. Strawgr. ISi. 4d. my lord. Now read
bia ccTtifieate. {]a*e yon examined it f Is it*
triMCOpyP — CraiulOH. It is.
AuociaU reads :
"HatllngH, u. 19 May, 1588. Baptized,
John, ibe SOD of John Barley."
Scrj. El/re. Mr. Cranslnn, you xay you hsFC
(Xamiiml the resiftcr ; Did not you find bd
elder brother of tEi« John Durlcy ?
Crantton. No.
Mr. Strange. BIy lord, we shall now shew,
at Ills fatli«r acted at a freeman anno 1561.
Read ihe eotry. la it a true copy J
Cramlon. It is.
Aaociate reads:
" Hastings. Election' Ballivi lent' ibidem
die Aprilis, viz. die Dominica prox*
post [lock-day, snno tertiu Elizip, nunc Re-
giniE Aot;!' a. n. 1561. Ad qiieni diem eleetui
est ad officiinn Balliri tUIx (iiml' pro hue anno
Tho. Wyks, per >ocea et Dominaliooem Edw.
Aywooil, Bliipwri|[ht, Hen, Taugbl, Wil.
James, Johaaoia HeniljtiK, Ed. tSinylh, Hen.
tiiinyth, Jubaonis Barley, Thn. Lake, Johannis
Hoitands, Wi). Cresey, Rob. Payne, Itic.
White, cooper, llohannia Slanbynooth, Tho.
Palmer, Sleph. Dallery, Hcd. Bossam, jobao-
nis Smylh, Tho. Lasher, Ric. Down, Al.
Bocher, JobaDiiia Aiiateo, Tho. Malcbyn, Jo^
lian nis Horsey, Wil. Stevens, Johanuia JeAeryi
Rob. Taught, Wil.Cburche, JohauDiiBosaam,
sen. Johauaii Stryde, Alani Morris, Tho. Chat-
field, Alani Partridge, Bob. Grare, Tho. Har-
rison, Will. Lonketl, Tliomce Mott, JohaDirii
Sargent, et JobaimiB Uerle."
Mr. JlfarM. Hy lord, the nt^ instance ii
William Guldham. He was aduiiued tba iMf
of May, 1609.
S'nT.Ahtu^. HUgreatgTandsoiiisjastbjr,
Mr. Mank. Read (he entry. 1* it exB<
mined P — Crantton. Ye*.
Aaocialt reads: .»
>'7Haii.7''Jac.lmi, IGOB. Hastiof^siSej^
limo (lie Msii, hoc anoo seplimo Jacobi Regis,
WilJielmuB Goldham adtnistus est ail liberta-
huJusTillte, et sacrampntu'm prMtiliiCor-
oscutatuB est malam oextram Ma<
solito; et finis ejus pro admiswniM
sua oisenatur ad 6i. %d. quia filius liberi-ho-
Mr. JUarsA. Now look out Ihe certificate of
his baptism. Have you ekamiaed ilF Isit«
true copy ? — Cratutan, Jt is.
"39 November, 1534. Baptized, William,
the son of John tioldliani,"
Mr. Marth. My lord, he was admilted'a
freeman Ibe ISIh of April, 1575, nine years be-
fore the birth ofbisson.— Ilend Ihe faiher's ad-
mission. Is it elamitied P — Crantton. Yes.
Auociatc reads :
" Haslinifs, u. Memorandum, quod 15°
Aprilis, 1575, Ricbamlttt Vteo&\M,N^^^o^ai>»»
3K.
867]
10 GEORGE IL
Cate of Henry Moeffif
tSGft
Coombes, Ricbardos £dboroiigb, Jobaones
Goldbam, et Wil. Mycbdl, jon. admini aant
ad libertatem vitlee praedict\ et Aicti aant liberi
hotniues secaoduin usura et consuetadinem
Tillae prsedict', et feed*, etsol'oscul' Ball', &e."
Serj. Eyre, Does it appear wbat tbe fiaa
was?
Mr. FUmer. No.— My lord, tbe next in-
stance is John Sargent. He was admitted tbe
14tb of July, 1610.— Read tlie entry of his ad-
mission, fs it a true copy f-^Crantton, Yes.
Asiociaie reads :
*^ 1610, Hastingps, m. 14 die Julii, hoc anno
octavo regni Regis Jacobi, Johannes Sargent
admissus est ad libertatem bujus Tilke, et sa-
cramentum pnestitit corporale, et osculatus est
inalam dextram Majoris, more solito ; et finis
ejus pro admissione sua est 6s. Hd, quia pater
^us liber erat."
Mr. Fitmer, My lord, be was baptized the
9 Ist of November, 1568. Read tbe certificate.
Js it a trne copy ? — Cramtoru Yes.
Associate reads :
^* Hastings, ss. 91 November, 1568. Bap-
tized, John, tbe son of John Sai^ent."
Mr. Filmer, My lord, April 3d, 1561, his fa-
ther acted as a freeman ; that was seven years
before. — Read the entry. Is it examinea P
Cranston, Yes.
Associate reads :
«< Hastings. Elect' Ballivi tent' ibidem
. ^e Aprilis, viz. die Dominica prox' post Hock-
day, anno tertio Domiuae Elizee, nunc Reginas
Angliae, &c. a. d. 1561. Ad ^uem diem elec-
tus est ad officium Ballivi villas praedict' pro
fioc auno Tho. Wyks, per voces et nomina-
tionem £dw. Aywood, shipwright, et (inter
alios) Johannis Slargent," nt supra,
Mr. Clarke, My lord, the next instance is
Thomas Raiuolds. He was admitted the C7th
i^Iay, 1622, — Read his admission. Have you
^X^mineil it ? Is it a true copy ?
Cranston, it is.
Associate reads :
** Hastings, ss, Cur^ tent' die S7 Maii,
4623, coram Roberto Lloyd, secundum consuc-
tud'. Memorandum, quod ad hanc cur' Tho •
mas Rainolds, filius Melcbioris Raiuolds, liberi
liominis hujus villae, venit et petit se ad liberta-
tem bujus villas admitti ; et admittitur, et sa-
4n*amentum suum more solito preestitit, et raa-
tara dextram Majoris secundum usum oscula-
ius est, pro fine sno inde, dec."
Serj. Eyre. Is there any thing mentioned
^hat the tine was?— Mr. Clarke, No.
Loi-d Hardifficke, It is pro fine suo,
Mr. Clarke, My lord, he was baptised the
I5th of December, 1601. — Read the certificate.
Ill it examined ? — Cranston, Yes.
Associate reads :
»• Hastings u, 1601, December 15th. Bap-
''^y Thomas, tbe son of Udcbior Rainolds."
Mr. Clarke, Yfe shall now aheiTf that hn fa-
ther acted as a freeman tbe 17th of April, 1597.
— Read that entry. Did you examine it f Isil
a true copy ? — Cranston, It is.
Associate reads :
<* Hastings, ss. Elect' Majoris Filhe prs&t'
tent' ibidem die Dominica prox' pott Hock-
day, viz. 17° die Aprilis, anno regni noatne Ik*
minee Elizas, Dei gratia Angliasi Frandn, et
Hibemise Regins, tidei Defensor '» &c. trioesi-
mo nono, 1597. Ad banc electionero Rk.
Lyfe, Major ; Tho. Lake, Ric. Calveii^y
Riog. Ferrys, Ric Frank, Ric. Frencbe,Mar-
tinus Lyfe, Jurat* ; liberi homines, JohauMi
Coonev, Marcus Sarsent, Tho. Htepbensoi,
Willielmus Byshop, Willielmus Coombe^ Ric
Hackwood, Johannes Durant, Johannes Hsr-
sey, Tho. Young, Rob. Jenkin, Ric. Fid^
Tho. Colgat,Tho. Mannington, Rob. Milb, Jo-
hannes Brett, Ric. Porter, Johannes Knight,
Steph. Porter, Ric. Burckam, Johannes Fissa*
den, Martinns Harrison, Melchior Rainokbi
Michael Stunt, Nic. Staplus, Bemardus Boras^
Petrus Hurry, Johannes Bailey, Rob. Parkei."
•* N. B. At this day Richard Lyfe wai
chosen mayor, and Melchior Rainolds town*
clerk.'*
Sir T. Abney. My lord, we shall next by
before your lordship and the jury otherlo-
stances of persons admitted as eldest fons sf
freemen, and born within the borough. Tbs
first of them was admitted in 1610.
Lord Hardwicke, That comes under tbt
first head.
Sir T. Abney, My lord, we shall shew tfait
they were the eldest sons of freemen. Wc
begin with Thomas Streat.
Mr. Strange. And boru within the borough.
Sir r. Abncy. Thomas Streat, my lord, wtf
admitted the 29th of April, 1610. He wH
born within the borough tbe 31st of Marcb,
1580. So that he was thirty years of ase^
when he was admitted. — Read the entry of oil
admissioii. Did you examine it? Isitatnif
copy? — Cranston, Yes.
Associate reads :
*' Hastings, ss. 29 Aprilis, 1610, 8 Jac. 1.
** Quinto (!ie M.iii, hoc anno 8^ Jacobi Reffi^
venit Thomas Streat, maximus nata fiuoi
Thoraae Streat defunct', nuper unios liberorm
hominum hujus villus, et petit se admitti ad li*
bertatem hujus villce ; et \>er Major' et Jvnt
antedictos ad missus est, et sacramentum ptm*
stitit corporale, et osculatus est malam da*
tram Majoris, more solito ; et finis ejus pn
admissione sua est 6s. Sd. quia pater suos UDtf
erat, secundum consuetudinem," Sec,
Sir T. Abney. Now read the certificate sf
bis baptism, the 31st of March, 1580, to sbev
that he was bom within the borough. Is it|
true copy? — Cranston, It is.
Associate reads :
•* Hastings, a. 31 March, 1580. l^esu^
day baptiz^, Thonutfi tbe iOB tf
Streat.'^
^^Q upnn a Quo Warranta-
IjotA Uardmickt. WhatreglsWislliatacaiiy
«f i now It ovuiea In be mure oeccMsry tu >*K F
Criuu'fK. M; InnI, ll \n a true cnjiy of ihr
pari«h-rr);iitcr of Hutmip.
Mr. Slrangc. My loni, llie oexl is Willimm
Lorell. Hia futhur was iioi nnty a rteciiiaii,
but a iural, lie ms aJmitteil tlie OlU gf Seji-
tmlMT, 1036.
J/f. Gen. Vnu go backnanis bu>) furwnrds
Ml-. Slraniir. Vi
Ml*. WrRn^c We'licort'^uliirly on; yoii will
Mlbekble Ui folluw ns— Id-iit the eiilrv ol tlip
M or Scpteinlm-, 1636, at the ailmiisiun uf
miKam I<ov«ll, jiin.
Mt. Gen. You must prove ^Villinra Lovell
Ilhlher «rns a Ireemnn ; you read liiia bclbre
Ed Hard/fkke. What is tbo lime of Wil-
[Lmll'a admission?
fr-AroBge. My lord, tiieSLb of September,
torU Harda-Uke. Tlie aoih of April, 166T.
Ibomu the ton of William Loiell, was ail-
mioti.
Kt T. Abnry. Aod now, my lord, wo rend
1^ fUbet'id uilraitlauce, Ihe eih of September
U9a.
ImxA llardu'icki. You did not read il beCore ?
8if 7". AbM<i. My lord, we read him before,
«1 a jural.
Ur. Strangt. My lorit, il lias been read, lo
iliciT Ibal the father iras a IVeeman at ibe
lto« af the aan'a biriti.— Uead il again. Did
MCnmine il ? Is it a true copy ?
"■ niton. Yes.
tMaa&ugt. u. 6. Se])tembEr, 1636, Wit-
n Lo*e1l, jun, eldest ion of bin fallier, jural,
■ho ia non made free of ibis corporaiioo for
Of- 64. fine, took hia onth, and kissed tbe
■nyor'i right cheek, more lolilo," jcc.
Ut. Sirangc. Now prwluce ihe register of
the Sill December, 1039. Is it a true copy f
Cramton. Yea.
AttetiaU reads :
Mr. itarih. yiy lord, tbe neit liistance,
«Bd»T Ibi* lirail, ia Thomas Prank. He ifas
iteittti] the S6ih February, 1662.— Read his
"* ' Did you examine il ? la it a true
■ Y*i-
Aaociale read*:
" IIa«iiiii,'«, (!, Auvmbiat' in Aula Curial',
K Peljrnafii, 15 Car. !(. 166«. At this aa-
■Cftibly alio, Tbooias Oawen and Thomas
Prauk, upon ibeir prayer io that behalf, are
Bdmitttil 10 the sereral freedoms of this lown
ll port, for their tcteral finea, viz, Thomas
^U I3i. id, and Tliumos Frank 6t. Qd. ha
' a thlcai twi of K iVeeman bcre ; who
A. D. 1736. [870
■Ito took Iheir ai-Teral oaihs, sod kisied ih«
maycir's ri);ht cheek, nOre soUto," So:.
Mr. MuriA.The 6th "f May, 1634, be «-ai
baplixed, my lord. — Head tbe certificale. Did
yon examiucil? Is il a true copy F
Cranslan. 1 1 is.
" Haslin;;s. j.. 6 May, 1632. Baptiied,
Thomas, tbe sou uf Frank."
Mr. Clurke. My lonl, the next instance i«
Iloberl Snrifent. 'He waaaJmilled the I'iih of
May, 1663. — Itead the odmisaion. Is it a
ti'Uecopy .'— CroiK/on. Yes.
of this town, aeaman, upon hia humble a
made free orihef'ranchiMmentoflhis town, and
look hia nath, and kissed tb« mayor's right
cheek, more lotilo, &o. His Sue jiaid is 6i. hd.
lie was eldfit son of John Sargent, hia father,
late freeman of Ihis town, deceased, Gee."
Mr. Filiner. My lard, be was haplixed the
3d of Norember, lUOl.— Read tbtt ctrtlGciite
of his baptism. Is thai a Irne copy J Did you
examine il f—Cranilon. It is.
Juociufe reads:
" HastinKi, ii. 3 NoTember, 1604. Bap-
tized, Itoben Sargcnl, son of John Surgent."
Seij. El/re. He was fiOy years old, and up-
wards, when he was admLlied. If he had a
right as an eldest sun, how came he not tu
claim il before !
Mr. Strange. The entry tell* you he waaa
aeaman ; till be left Ihc sea, il was not worth
Ins while tu lake up his freedom. •
Hr. Clarke. My liinl, the next inslaace ii
ThoiliHS Stevensuil. He was admitled (be 2Mb
Jnoeiale reads:
" Hasting, m. SS April. 1667. Before Wm.
Parker, esq. mnyor) Philip Girdler, Samuel
Smersball, Wm. Luiisford, and John Hyde,
jurats; came Jamea Shinj^jeton and Tboroaa
SleteDsnn, aod prayed lo be admilled lo the li-
berty andfranchijesof ibis town; and bv the
Haid mayor and jurats then presenl are inere*
unto admilled; who there upon took the oalh
accustomed, kissed ibe mayor's right cheeky
more lulUo ; and cilber ol ihem ara i» pay, lia.
Ihe said James a mark, and the saidThomaa
half a mark, be being tbe elde<il sod of hia fie
ther Richard Stevenson, a late freeman oflliia
town, deceased, to Ihe present rhan)berlaia of
this town, for such Iheir admittance."
Mr. Clarke. Now look out the certificale of
hishaptism. Readthat. Didyuucxamineit.'
Is it a true copy f — Craniton. Vea.
Auociote reads:
" llaalings, ji. 164Z, November 6. Rap>
tized, Thomiii,iOo of HicbitnliilvTeMOtt."
4791 10 GEORGE O,
Auaaate retdi ;
" 8 Febniai-y, 1603-4. At tbii cnurt
Uwhstl Peabuckle, mi craved to be tdi
inU Ibefranchise of this town ind port ; which
«u grtoled him, anil he a«KirdiDgly look the
Mlhi Iherebj rFquireil, and kiued the mayor'a
cheek, more telito ; and for hii fine, lieing
the eldeit sou of a freeman, paid 6j. Bd. &r(r'
Rpail ihecertifi-
•peak t(
Robert 1
Mr. Strange. Mylord, fai
of September, IG68, anil wai
old when he was made tree.
eate of liii bapiisHK
Cra/ulvn. V«(.
Auoeiute reailK :
■■ Hutinf[8, (1 SI September, 1668. Bap-
tised, MicbEkel, the aon of pBubuckle."
My lorJ, the next inalaDce we
.0 (and we stmll read but seien more) n
FelUws, adiuilled Ihe 17ih of February,
1693. Read hisadmiBsioD. Did joDexaiuiue
Jlf
Cramlon. Yes.
Aatxiale reads :
•• Memorandum, That the inh February,
1C9S-4, before John Medhum, esq. mayor;
John Hide, Tliomaa LoTet], Fhilln^ LotgII,
John Stereni, Edward Milward, and Dr. Peter
Fiat, Jnrali ; in open court, came Robert Fel-
lows, tea. Mark Meadow, and Auslia Lacbet,
and craved to be admitted into the francblse of
Ihii town and port ; which was ^^raoted them,
and they accordingly took the oaths thereby
required, anil kissed the mayor's cheek, more
tMlo ; and for their fines did Keverally jiay as
followelh ; the said Robert Fdbwa, being' the
eldest son of a freeman, paid 6s. Bd. and ihe
said Mark Meadow and Austio Lacket paid
13». id, each, exlr' camerar'."
Mr. ilarth. He was baptized the Itt of
July, 1656. Read tlie copy of the regiiter. Is
it a true copy? — Crantton, Ye*.
/ItHviate reads:
" Hastin<;s, ti. July 1656. Firrt day uf
this monili Robert Fetluwa wan baptizeJ, the
SOD oFGeoj-ge."
Mr. Fihair. My ford, thenexHs John Ilua-
wy. Reud his aitmisiioii. Is it examioed ?
Cranitoa. Yea.
- Atsociate reads :
" Mcmoraiidiiru, The 5th day of January,
1694, bcfiire Mr. Mnyor, and three jurats, i
there cauic Jelfery Glvde, John ilussey, jun.
soil Henry Barry, and craved to be admitted
into the Ireedom of thia town aud port of
Masting^; and they wereaccordiuglyadmilted
into tJie freedom, and took (he oaths o'f freemen,
and also the other oaths, and kissed the mayor's
ri^ht check, tnort io/i(o, and for their fines paid
seTcrally as tullows, viz. the said Jeffery Glvde
13f. id. the said John Uuasey, being the eldest
•on of a freemui, 6t. Bd. and ihewiil Henry
Sury 13t. Kf, atr" camertr'."
Case of Henry Moare,
Mr. Fitmer. Hy lord, li« wa« IB
April 1680. Read theregicter. la it«
Cratuloa. It ie.
Aaociale reads :
'* Baitings, u.
tized, John, the so
Mr. Clarke. The neirt, my lord, b Jaha
Geery. He was admitted the 35ili ofOcMbcr,
1707. Read his admisaioD. Is it examiiiedf
Cranston. Yes.
AucciattreBdt:
'> Hastin^^B, it. 35 October, 1T07. At iht
aame court Richard Hudson, John Geety &'
Johannis, et Thomas Gyles, were iwom free-
meu ofthia town and part, for their aeTenlfian
following, viz. Richard Hudwn, 13t. 4J. Joha
Geery, as eldest son of a freemsD, 6t.Bi.ui
Thomas Gil« 13i. id. tnare tolito."
Mr. Clarke. He wai baptized the nth if
April, 1683. Read the certificate, fait en-
mined F — Craiuton. Yes.
Auoeiate reads :
" Uaatinics, a. April 9, 1683. John, lbs
■on of John Geery, and Elizabeth hia ivire,wit
baptized."
Sir T. Abnty. My loni, tlie next insttnee ii
William tihurter and Jacob Funttey, ai
the 11th of August, 1722. Read tbeadn
Ii it a true copy ? — Crantton. Yea.
.(jfiociate reads:
"Hastinn.u. 11 August, 1723. Mr.Jafat
Mtad, William Shorter, John Harmaa ud
Jacob Fantley, were admitted and sworn fnr-
men and comturons, by the mayor and setat\
of the jurata, accordinjf in the ancient ciKKM
and use, for their i«Teral fines fidlowing; Wil-
liam Shorter, as ehlest son of a f'reemao 6i. Id.
John Mead ]Si. id. Jolin flarman &(. Od. mi
Jacob Fantley, as eldest ion of a freemuf
6*. 8d."
bis certificate. Is it examined ?
Auoeiate reads :
Hai)tin[;B, n. Juna !9, 16119.
of William Shorter."
Willi
Baptized,
Sir T. Abney. My lord, ne have many mors
entries, not distinguishing bctivetn sons and
eldest sons : but we shall not trouUe yw
lordship with thetn, but go to our living «il-
aesses. — Call Uobtrt Evemden.
Robert Evemden sworn.
Sir T. Abrtei/. How old are you ?
Evemden. Sixty -five yean old.
Mr. Laci/. Was your r<Lther ■ freeman «f
Hastings J—Evernden. No.
Sir T. Abney. Where were you bocn f
Evemden. At Roberlsbridge, IS milts ftMB
Hastings ; but I have livM Gftj ynn is
npon a Quo Warrantt.
\ty. Wlint do you kninv of Uie
Minfa, ai to wlint rbhi itie eldest
m liBVfl to itieir freetfums ?
I l)iit« heinl genUeineD soy— I
jy. Who ha»e you heard siiv F
I hnic licaril Air. Tbomoa Atoore
ore, w)ia were IidUi jiutices of
H^ toni, here Jia mao prompls
r. Let lum go on the otber
My lent, I kptiiehcnd this is doI
. Yao My, yon IWeil fifty years
Rnd kDew ThDmas Moore and
I juilicca of the prace, and jurats ;
' iuid the jury an nccouiit, what
•rd tlietn say in ri^lalion to the
t tons of t'reeinen to be free.
i h«Brd them say, thni llie eldest
um li«d a right.
<c. tVherc must they lie boro f
Born in lonu, to he sure.
|e. Whether mtiit Ihey be born
itliers were made free, or after ?
They niiiiit be born in their
[c. What fine do Ihey nsualty
iden. Six and eight pence.
». Hid you e»er know an eldest
(DMi, during the 50 years you
tiaitings, renued ?
Seme did not r«)uire it.
ft. Was any tmdy denied, that
•lit?
mickt. ItetHily tells you what he
Mrei lay. Yuu «ay, ynu bad
inn with John Moore, and he was
■at did he tell ynu ?
r He told rae, thai the eldeft son
itfht.
^atikc. vim John Moore ajuratf
Yec, tny lord.
wieke. And these two men told
I. Yea. my lord.
;c. How long ago ia, it that (hey
^—Ei)enden. lc«uontu^lt.
«. But, according to your me-
ng du you think it may be?
It was, I hetiete, in the la^t
or queen Anne's, tttat they spoke
tell in a year.
B. Have you seen them lately F
No.
<$. WitfaiD SO or 30 years ?
\t».
rDid both, or one of them,
And bow lon^ is it since, ac-
librstof your remeinbrance ?
fAboat ten or a dozen years ago,
\e. Had you any converutiun
t frwuuan about tliis right ?
Yts, with Kobrrt Banholomew.
E. Was he a freeman ?
t^ b«CB JDiiyor.
A. D, 1738.
Mr. Slrangt. What bare you Iieard hiin say
about tbis right ?
Evcrnden. I have heard bim say, the eldest
son of ft freeman had a right.
Mr. J/jiriA. Do you know Dr. Fiat ? Dor-
ing«o many years as you lived in Hosliiig^
du you remeniber him to say any thing about' •
the rii,'hl of eldmt sons ?
Hscrniicn. He has been ileud some time.
Mr. JfiiriA. What was he?
Hvtrrtdcii. He ivas a doctor, and mayor or '
(lie town. '
Mr. Murth. Did he ever say any thing W
yuu abonilhis ri^ht?
i^rcrnikn. No, nut that I remember.
Mr- Ulraage. During the 60 years yoit
lived in Hasliugs, what was the general re-
port there concerning the right of eldest
aaua, that what they infonned you about it
Eieradctt. I never heard any body say but
that tbt^y had suvh a right.
Mr. Clarlie. How oU were Robert Banho>
lomew and the two Aloores when you heard '
lliem say this ? .
Evtrndtn. Tliey were very ancient men.
An. Gen. You know nottiingof your ow*
knowledge ; it is nuty by hear-say ?
Evcrndcn. No.
All. Oca. What ilid you hear them say ; it
Wa^ iinly in general f
Evcrndcn. That the eldest son of b freeinai
Sen, Was it to the eldest son of a frea-
generully, willioot cooliuiug it to being
to any particular
it the eldest son of
bom within Ibe borougb.
Bvernden. They said,
a freeman had a right.
Alt. Gen. Are yon cure they confined it to
llie eldest eon of a Irecman ? Did they say
nothing, that all the sons had a riKbti'
'y\t. Strangr. If all the sons bare a right,
then an eldest son has.
Lord HardaUhe. Air. Everiiden, you said,
they muaE be born in the town during th«
fathers freedom ; did Thomas Moore or Joba
Moore say whether they nuisl be born if
Hastings, or al^er their fathers freedum ?
Evernden. No, rny lord.
Lord Uardwicke. Then why did you sBJ
that?
Evemden. They said, tlinl the eldest son of
a freeman hod a right, if any body had.
Several Coanicl. Ay, if any body had !
Lont Hardai<ke. What is the right of frae^
dom ?
Evemden. None at all, but by the electiOK
of the mayor ni^d jurats.
Sir T. Abvtu. Tliey are glorious felloin!
Air. TMiy. Did Aloore say any ibiDg of i«>
sideuce ? — Eiernden, No.
John Couttnt ii
Mr. Sfran^r. How old are you, Mr. Cai-
zetis ?— Cutiic'ii. About sixty.
Ht. Straimc. H'bei* werv joulwnf
^IJ lOOEOROE 11.
Sir 7. Ahney. My lord, the next ii RicbarJ
Walter. He was admitted the 8th of Januanr,
1669. Read his admissioii. IsitexamiBoaP
Craruton. Yes.
AtsocifUe reads :
*' Hastings, sx. 8 Janoarj, 1660. In full
court then also holiien hefbre Mr. Mayor and
bis brethren, came Richard Walter, and prayed
the enfranchisement of this town ; who being
the eldest son of his father Simon Walter, a
freeman, is thereunto admitted, for his fine of a
demi-mark ; and in like manner Robert Boy-
Jcetl and Robert Philip, for theijr se? eral fineaof
a mark a -piece; who all took the oath accus-
tomed, and kissed the mayor's cheek, more m-
iito."
Sir r. Abne^. My lord, he was baptised the
J^th of December, 1641. Is that examined ?
CranttOH, Yes.
Auociate reads :
** Hastings, ts. 5 December, 1641. Bap-
tized, Richiird Walter, son of Simon Walter."
Lord Hardwicke. Let me see it ; it is Wal-
thers. Who do von call next, Mr. Strange ?
Mr. Strange. My lord, William Genner. In
1674, he was admitted. He was born the 6th
of June, 1G47.
Alt. Gen, Why do not you keep your own
order? We never know where we are. You
read that before.
Mr. Strange, Ue is in the same paper with
John Fantley, who was read before. Read tlie
admission again, the 5th of December, 1674.
Associate reads:
^' Hafitintfs, ss, 5 Decembris, 1674, 26 Car.
5Kdi, coram Major' et Jurat' in plena curia venit
Johannes Salmon, et pcMit libertatem liujusvil-
lie ; Johannes Fantley, jun. et Willielmus Gen-
ner, jun. et udmittuutur, scilicet, preedict* Sal-
mon pro 13«. 4d, et |»rcedict' Pantley 6«. Sd. et
firoedict* Genner 6s. 3d, quia filii sen' patr' eor'
iber^ ; qui' oinncs fecerunt inde sacramentum,
et malani dt^xtram Majoris osculaverunt, more
tolito," &c.
Mr. Strange, My lord, he was baptized the
6th of June, 1647. Read the Hastings regis-
ter ; there are two parislies. Is it examineid ?
Cranston. Yes.
Associate reads :
**6 June, 1647. Hastinjrs, ». Baptized
William, the son of William Genner, a jurat*
Mr. Strange, This falls within the first
Lead.
Air. Marsh, My lord, the next instance is
Richard Sartrent. He was admitted the 13tb
of Murch, 1676. Is that examined ?
Cranston. Yes.
Associate reads:
>< Ila8tint:s, ss. 12 i\!arch, 1676, 29 Car. 3.
Befbre Mr. Mayor, Mr. 11} de, and Mr. Tho.
Lovell, jurats, in the court- hall, came Richard
fiargent, eldest son of Ricliard, and psiyed his
freedwBB ; whiok was graatad bim by ue iNid
Can of Henry Moarif
[811
3f
nayor and jurats, for his line of dt. 8d. aod
then and there took his oath, and kiHei tkt
majTor'i cheek, more solito,"
Mr. Marsh. My lord, he was bora the S6di
of Dec. 1624.
Lord Hardvicke, His father is not said then
to he a freeman.
Mr. Sfranf^e. My lord, it is only said, "Bt
chard Sargent, eldest scm of Richard."
. Mr. Marsh. My lord, be was born the 26A
of Dec. 1624.
Lord Hardwicke. Can you shew his ftthir
to be a freeman ?
Mr. Marsh. It is only, ** eldest son of B*
chard ;" if he be a stranger, they mentHH thi
father to be so ; and the fine ih 6s. 8d.
Lord Hardwicke, If the father be*a freeoBii^
you should shew it.
Wlr. Strange, Now and then a town dak
stitches a few thin^rg together——
Mr. Filmer. My lord, tlie next inatanes ■
Thomas Gawen, admitted the Slst of Jkt,
1677. Read it. Is it examined ?
Cranston, Yes.
Associate reads :
«' Hastinj^s, ss, 21 Dec. 1677. By and hs-
fore Thomus Carlton, mayor ; Thomas Lofdi,
and Thomas Dyne, jurats, in the coort-b4
being present at the seat ; JamesBatchelor, jsi.
Thomas Gawen, eldest son of Thomas a frie
man, Mark Phili|is and James Moore, noa
their instant suits, are admitted to the fresma
of this town and port, for their several fiiici,il
u|M>n their heads appeared ; who tbereofoi
took the oath, aud kissed the mayor's righl
cheek, tnorc solilo. Gawen Qs, Qd, Datcbdflr
antl Philips ISs. 4d. each."
Mr. FUmer. My lord, he was bom in Hast-
ings, the 27th of August, 1653. Read tbe
certificate. Is it examined ? — Cranstoti. Yes.
Associate reads :
** Hastings, ss. August 27, 1653.
Thomas, the son of Thomas Gawen."
Mr. Clarke. My lord, the next is TlioDftS*
Bayliffe. admitted the 2tstof Nov. 1678. lU^
his admission. Did you examine it ?
Cranston. Yes.
Associate reads :
** Hastings, ss. At a court held the Sltt ^
Nor. 1678, 30 Car. 2, appeared Thomas BaJ'"
lifle, seaman, eldfst son of Thomas a freenn^*
for his fine i»f 6s. Sd. and Andrew Skeelb
man, for his fine of 13s. 4d. upon their eai
prayer and request, are adiiiittrd, at this
sembly, to the f Veedom and franchise of tl^
town ; vt ho both took the oath accustonie^
and kissed the mayor^s right cheek, more s^'
lito,*' See.
Mr. Clarke. My lord, he was bora in Basl^
ings, Jan. 14, 1637. Read tlie oeitifioats. tM
it a true copy ? — Cranston, Yea.
Associate reads :
•« Hastings, ti. Jan. 14, USST.
TbauM^ tha Mt of TtmM ItoyUflb."
tat]
iftm a Qtf 0 WarrmHo.
JL D. 1796.
[874
Srr.JlMy. Mt kvd, the nnl invlaiice is
Bcoiy CbMbif. He was admittei tke irth
•TDec. 1679. Read hb edmiMkm. Dili you
fnmiiie it ?— CrflJulM. Yes.
Jtwciate rmls :
** HastingB, fs. IS Dec. 1679, SO Car. 9. In
[ M court then and ih«re holden, Henry
CiOBibes m made free and sworn, bein^p ekdettt
IM to bis father, a fireeman, deceased, for Ct.
9Lmon 9olito.'*
' Sr r. Abney. The certificate of his birth or
iiifkm is the 18tb Sept 104S. Is that exa-
rAdF— Creni<oa. Yes.
JlMKiafe reads :
« Hastings, si. 18th Sept 164S. Baptized,
BifT, the SOB of George Cooaabes."
Hr. Siramge. My lord, the next is Mark
BaOey, admitted the SBth of NovembcT, 1691.
Bead his admission. Did you examine it ?
Crwnston. Yes.
Auociate reads .
^< Memorandum, That the SBth day of Nov.
1691, before Robert Phipps, mayor ; Thomas
iBfcU, Philip Lovell, John Stevens, Dr. Peter
VSst, and John Medhnrst jurats ; came RichanI
Hams, Nicholas Danvel, Mark Bay ley, and
ttchard Hart, all inhabitants of this town, and
Marately craved to he ailmitted to tlie fran-
fhit of this town and port ; and ihey were ac-
wdiDgly admitted into the freedom, and took
ibe oaths of freemen, and at the same time
hok the oaths of fidelity to their majesties kini?
Vliam and queen Mar} , and kiwed the mayor's
Ml cheefc, fnore to/if o; and for a fine pHid,
1V.Sicbard Adam», Nicholas l>anyel,and Ri-
chvi Hart, each V3s. 4d. and ^larfc Dvyley,
ha| the eldei^t son of a freeman, 6$. Bd. exlr*
ti toe chamberlains."
Xr. Strange. Now read the certificate of his
kpmm. Ik it examined ? — Cran$ton. Yes.
Amciale reads :
**HasiinKv, st. 39 Nay, 1664. Baptized,
Ihrk Bayley, the son of Mark."
Mr. Manh. My lord, the next instance is
I^iid Bniadbridgfe. His name has been
ncstioned before ; but your lordship, 1 believe,
Im sot taken him as an eldest son. He wa.s
idouited the 26ih of December, 169t.
Lord Hardwkke. 1 have it; Ue was admitted
Mr. FUmer. My lord, the next is Robert
lirtbolomew. He was admitted the 26ili of
•Nm. 1693. Read the entry. Did you exa •
^AHii?-^Cranston. Yes.
Ameiate reads :
** Hastings, sf. memorandum. That the 36tb
fcyof Nov. 1692, before Petei- Fiat, esq. mayor ;
KttM Lovell, John Stevens, Edward Mil-
*^, and John Medhurst, jurats ; came Ro-
^ Bartholomew, and craveil to be admitted
■••Ihe freedom of this town and port; and he
^•fleardbg^y admitted into tlie treedem, and
"4 the oath of a freemaD, and also the other
oaths, and kissed the mayor's right cheek, mori
tolito ; and for hut tine paid 6«. 8d. being th<
eldest son of a freeman, extr^ earner ttr\**
Mr. FUmer, He was baptized the 10th o:
January, 1654. Read the certificate of hii
baptism. Is it examined ? — Cranston, It is.
Auociate reads :
** Hasting, «s. 10 January, 1654. Ttiistlaj
baptized, Robert, son of liartboloiueM .'
Mr. Clarke, My lord, the next is llioma
Hide, admitted the 1 1th of Murcb, 1603 Reai
that. Did you examine it ? — Crumion, Yes.
Associate reads :
" Memorandum, Tlie 11th of March, 1693*9
before Peter Fiatv esq. mayor ; John Hide
Thomas Lovell, and Philip Lovell, John 84e
vens, Edward Milward, Robert Phipns, un
John Medhurst, jurats ; came Thomoii ilide, c
this town, eldest son of a fret*mau, and crave
to be admitteil into the freedom of the aai
town ; and he was accordintrly aduiittetl inl
the freedom of the same lov» n ; and took tli
oath of a freeman, and also the other oaihs, an
kissed the mayor's cheek, more sofilOy and Ik
his fine paid 6«. 8d, rx/r' cumerar\'*
Mr. Clarke. He was born the lOlh of Mard
1667. Read the certificate of his baptisa
Did you examine it ?— Crcin«/o/i. Yes.
Associate reads : *
<« Hastini^, u. 10 March, 1667. This da
Tliomas Hide, son of Thomas Hide, was bai
tiaed."
Sir T. Ahney. My lord, the next is John Spa
row He was admitted tlie 3d of l\4iruar
1693. Fie was born the 6th iif A|)ril, 160y.-
Itead his ailinission. Is it a true copy P
Cranston. Yes.
Associate reads :
*^ Memi>randum, That tlie .Sil of Kebriiar
A. D. 16i>3-4, before John Medbunil, c«
mayor; Thomas Lovell, l^>l»erl IMiipiM, ai
Dr. Peter Fiat, Jurats ; came John Nparrot
jun. and John Fellows, jim. nnil ernvfd tu I
admitted into the freedom of thin Utwu and ytr
which was acrordii ;{ly ^milted lolhem, «i
tliey tmik the oaths thereby reipiirpd^aiid kM«
the mayor's check, more solito, «ad fitf t\it
fines paid as folloua ; tin-, nuui Joliu H^mm
beintf the eldest son of » freciMSiJ, tli*" ^uiii
6s. 8d. aial tluisaid John Fellow*, f4s, id,^*i
camerar* more solito.**
Sir T. Abnetf. lift was ba^ix«'4 Ch«- Otfi
April. 160R. \it^\\ the fA-ruUfAiifr . U |l«
aminetl ? — Cranston, Ve».
Ap*^. MA
I
Associate reotU :
** Ua»tiu|(s. sg u
John, the mni of ^—.m.
Mr. Strnnf^r. Mv IvrT m*^ ^^
Michael Vt^iht)4^V^' H- •» j
of February , Mry^ ll«^ ^m^
8S3] 10 GEORGE U.
Sir r. Abney. Did you nefer bear joor
Bother say any thiug about it?
Mn. mite. No. ^
Anne Sargent sworn.
Mr. Clarke, Do you know the town of
Hastiofcs f — Mrs. Sargent, Yef.
Mr. Clarke. How old are you ?
Mrs. Sargent. T am sixty- tliree years old.
Mr. Clarke. How long have you lived in
HastiDgs ?
Mrs. Sargent, I have lived there always^and
was bom there.
Mr. Clarke, Have you heard any discourse
conoeroing^ the right of freedom in that town P
Mrs. Sargent. I have heard Mr. John Ste-
vens, who was several times mayor of Hast*
iugs, say
Mr. Clarke, Is he livhig or dead P
Mrs. Sargent. He is dend,
Mr. Clarke. What did he say cooceroiDg
the right of freedom ?
Mrs. Sargent. Tliat it belonged to the eldest
sons to be freemen.
Mr. Clarke. Have yon heard any body else
say so f — Airs. Sargent. No.
Mr. Clarke. Have not you been married?
Mrs. Sargent. Yes.
Mr. Clarke. Have not you heard your hus-
band say, that it belonged to the eldest sons to
be made free ?
Mrs. Sargent, Yes, he has said the same.
Mr. Clarke, Was the common repute during
your time, that the eldest sons had a right?
Mrs. Sargent. Yes.
Mr. Clarke. Was it ever disputed, that they
bad that right? — Mrs. Sargent. No.
Mr. Clarke. And you heard Stevens the
anayor say, that the eldest sons had a right, se-
veral times? — Mrs. &ir^eii^ Yes.
Sutannah Medhurst sworn.
Mr. Filmer. How old are you, Mn. Med-
hurst?
Mn. Medhurst. I am 56 years of age.
Mr. Filmer. Have not yon been Mrs.
mayoress ? — Mrs. Medhurst. Yes.
Sir T, Ahney. Wlio have the right in Hast-
ings to be freemen ?
Mrs. Medhurst. All the sons of frc^emen.
Sir T. Abntj/. Has not the cddest son a
right ? •
Mrs. Medhurst. Yes; I have heard my
husband ssv, they could Qot deny him.
Sir T. Abncif. Ha?e yuu beard him say so
more than once ?
Mrs. Medhurst. Yes ; T have heard him
• say so often.
Sir T. Abntjf. Pray, Mrs. Medhurst, during
your time, was it the common reputation, that
,. the eldest son of a freeman had a right ? '
Bin. Medhurst. Yes.
Sir T. Abuey, Where were they to be born ?
Mrs. Medhurst, In the town ; it was not so
- noch dented then; if il was rc^uired| they
. vpuUdiiU
Ctue of Henry Moore,
[8M
Sir T, Abney. Have you eter knewa an
eldest sou denied ?— Mrs. Medhmnt, Yea.
Sir T. Abney. When? Was it within tutslj
years?
Mrs. Medhurst. I cannot say when.
Att. Gen. How many years is it suwe tbt
first eldest son was denied, that you know ol .*
Was it twenty years ago ?
Mrs. Medhurst, I do not know.
- Att, Gen. Mention the name of an ddesi
SOD that yon know has been denied ?
Mrs. Medhurst. The eldest ton of Mr. Med-
hurst.
Att, Gen. How long ago is that ?
Mrs. Medhurst. I cannot* tell.
Lord Hardaicke. Is your htiaband livings
Mrs. Medhurst?
Mrs. Medhurst. No, my lord ; my hnshisi
has been dead a great many years.
Lord Hardwiehe^ Did you ever know asf
body denied before ? Was it in your bnsbsnd^
mayoralty that this person was denied?
Mrs. Medhurst. No.
Lord Hardwicke. Was it before or after yeir
hittband's death, that Mr. Medhurst wu de-
nied?
Mrs. Medhurst. It was since my bnshifid^
death, my lord.
Seg. Skinner. You have a husband BOir,
have you not?
Mrs. Medhurst, I hope so, and a gBsdas
too.
Serj. Skinner, Yoo will be lady maysM
again then.
Serj. Eyre. Mrs. Medhurst, I wonM tA
you, whether, when you first knew IlastiD||i»
they did not admit every body on payment »•
fine of 6i. Qd. ?
Mrs. Medhurst. I do not know.
BIr. Strange. BIy lord, we shall trouble jeer
lordship with but one witness more. Caft
Thomas Colebrand.
I'homas Colebrand sworn.
BIr. Strange. You are not a freewin ^
Hastings, are you ? — Colebrand. No.
BIr. Strange, Have not you been appRStifle-
there ? How old are you ?
Colebrand. 1 am about 80 years old, tid
was apprentice there about 60 years ago.
Vlr.otrange. Have you been acquaistei
there erer since ?
Colebrand. Yes ; I live about sixteen mAm
from Hastings, and go to and fro firsqucadf
there.
BIr. Strange. Do you know what is tk
usage or custom, as to the admitting of free*
men?
Colebrand. Yes ; that freem^'s eldest sosi
were intituled to freedoms.
BIr. Strange. Were they to be bom wilbia
the town ?
Oflebrand, I never knew nor heard, tbit
being born, within the town» or atadistaao^
made any difference.
BIr. Strange, Had you any discoarat wilb
any audant p«>pla about \Um nattn t
IS5]
upM a Quo Warranto*
A. D. 17S8.
\m
CoUbrand. YeB.
Mr. Strange, What account did jo« receive
romtbem?
CoUbraniL That the eldest soDiaf frcemeny
MiW» had a right to freedoms.
Lord Hardwicke. Who have yoa heard lay
»?
CoUbrand. Old Waller, the town-^lerk.
Lord Hardwkke, Who have you beard say
» besides?
CoUbrand, One Thomas Lovell, and Tho-
IM RaiuoMs ; he was a mayor ; and I have
kud Uie mavor and jurats say so several times.
—I am not able to stand.
Mr. Strange, My lord will give yoo the li-
beitv to repose yourself upon that stool.
CoUbrand, I remember one Medburst de-
■ended his freedom.
Lord Hardwicke, How long ago was that?
CoUbrand, About €0 yearsi
Lord Hardwicke, What passed upon that?
Mr. Strange, Was he the son of a freeman ?
CoUbrmnd. Yes. I cannot recollect what
te dispute was ; but they put him by at first
Mr. Strange, What was the reason given ?
CoUbramL I do not know; 1 was not b
Hr. CUrke, You say, be demanded his
ftecdom ; Do you know upon what right he
.^oaandedit?
Lord Hardvicke, How came you to know
Ihsl Medburst demanded bis freedom?
CoUbrand. My uncle Lovell was then mayor,
aibeteld me so.
AU, Gen, My lord, the witness speaks to a
laiHlar custom only ; I submit it to your
miipy whether this evidence of a particular
Lord Hardwicke. I think it is evidence to a
iBMral right, and not to any particular cus*
M WGat did vour uncle Lovell say ?
CdArand, That it was an ancient right,
iWt freemen's eldest sons should be made tree.
Lord Hardwicke, How came there to be a
iMa aboot this matter ? Did your uode Lo-
wIleH yoo any thin^ about it?
CoUbrand, He said, that Medbunt came
nd demanded his freedom.
Lord Hardwicke, How did you know after-
vinb that Medburst was made free ?
CeUbrand, Because I afterwards saw him
SBODg the freemen, at the election of one
•Ibsts to be a member of parliament. He
Mod in the election.
Mr. Strange. This Rainolds was old Rain-
dU the town-clerk, who was admitted the 37th
^May, 1662. He is the 15th man we spoke
8r r. Abnev. My lord, the 13th of March,
W4| this John Medburst was admitted. —
«4d the entry of his admission, is it a true
ifi|y7— Craiu/on« Yes.
iaoctsfe reads:
, * Hsstiugs, «i. March 13, 22 Car. 2, 1674.
tt ndl com then and there bolden, before the
W mpt nd jnimtSi came John Medburst,
ekieal son of Nwholas Medburst, tate a freemen
of Hastings aforesaid, and prayed to be made,
free of the liberties of this town ; wbereunto he.
is admitted, took his oath, and kissed the
mayor's cheek, more toliio^ and paid 6f . Qd. to
the chamberlain for hia fine."
Sir T, Ahnty, My lord, we shall not trooble
your kMrdship to give any further evidence.
Att, Gen, May it please your lordship and
you gentlemen of the jury ; I am counsel in
this case with the defendants : and, notwitli-
standing the long evidence you have heard, we
doubt not but the defendants will make it sp-
pear, to your entire satLsfiictioii, that they have
no other view in defending this suit, but as by
their oaths they are obliged to support the an-
cient rights of the corporation, and prevent in-
novations there ; of which this pretended right
of the plaintiff will appear to be one. • And,
gentlemen, the single question you are now to
try is. Whether there be such a right in the
town and port of Hastbgs, as the plaintiff haa
set fortli in the Mandamus, as the foundatioB
of his claim to be free of this town and port,
which he insists belongs to him ? And , gentle-
men, as the whole depends upon tliis. Whe-
ther he has proved the right in the manner ha
has laid it in the Mandamus; it will be proper,
to state the custom to you, and then to observe,
how far tlie evidence that has been given hj
the plaintiff has supported his right, as it is
Uid m the Mandamus ?
And, gentlemen, as the plaintiff has laid it,
four things are necessary to give a roan a right
to a freedom in Hastings :
Ist, He must be an eldest son. It is, * every
person, being the eMest son of a freeman—'
Sdly, He must be born in the town. ' And
born within the said town and port.'
3d1y, It must be after the admission and
swearing of his father. For it is said in the
Mandamus that the plaintiff has a right iu re-
spect thereof ; and also,
4thly, Upon paying a reasonable fine, to be
admitted and sworn into the place and office of
one of the freemen of the said tovin and port.
So that, gentlemen, these four things are set
forth in the Mandamus, and, as they allege,
must concur, and are necessary to give a man
a right to a freedom in Hastings : for it is, in
respect thereof, and also upon paying a reason-
able fine, that he is to be admitted anil sworn
into the place and office of one of the freemen
of the said town and port. .
If therefore, gentlemen, any of these four
things, which they have laid as necessary, or if
one of these things laid as necessary, they have
failed in the proof of; for the right they lay is
in respect thereof; my lord, I say, if every one
of these things are necessary — ^They are,
1st, That he be the eldest stm of a freeman.
2ndly, That he be born after his father's
freedom.
3dly, That he be bom within this town.
And the next qualification is<| \v^\k "^vj'vs^^ %
I reasonable finie.
867]
10 GEOftGfi II.
Cmc of Hennj Mooftf
[SS8
These, gfontlemen, are the fbor thlog^ tbey
have tbougbt proper to lay as neceasary, \n
order to be admitted a freeman of thb town and
port
And, my lord, I hanibly apprehend, they
have i^iYen no proof at all of three of them ;
of one of them tliey ha?o pTen but a Tery
cligfht proof; and of one of the facts every evi-
dence they hare proiluced has given a direct
proof to the contrary.
And, my lord, there is one thinff more, which
is absolntely necessary in order to lie free of this
borou([b, that they have not taken in at all ;
and that is, that he must be resident within this
town ; and as they have not made that part of
their custom, they mnst iindoobtedly fail. I
said before, that they had not made restdenoe
a part of their costom ; and we shall fully prove
residence and inhabiting; within the town to be
absolutely necessary, and shew that they have
laid a foundation, hy their own evidence, that
this is necessary.
My lord, I would benf leave now to consider
their evidence which has been brought to sup-
port this right of the plaintiff.
And the first thing they have offered to your
lordship and the jury, is a writincr, which they
Ikre pleased to call the CustomaT; of which I
admit it may be a copy, as they have set it out.
And, my lord, your lord&hip hinted, that books
of this nature should be read in evidence, be-
cause the Court could not sec whether it was
proper to be read or no, till they had heard it ;
which supposes (as I humbly apprehend) that
we are at liberty to object to it.
/Vnd, my lord, 1 would submit it to your
lordship, that, considering how it comes before
the Court, and the part they rely on ; what
bad company it keeps, and what it is said to be,
only an entry of a Customal ; that it is no evi-
dence at all, or, if it be any, not of the thing
they briug it to prove. They open it as only
an entry of some old Customal; and the an-
cienter it is, the better, provided it had been the
old Customal ; but this is not the thing itself,
hut only an entry in the books they produce ;
and^ it is verv improper to have a Customal of
the Cinque Forts entered amongst other things.
It wduld have had great weight and honour,
had it been kept in some proper place. It does
not appear, but this may have been sewrd in,
by the fraud of an ofiicer of the corporation.
It is not the anrJent instrument, but only a
copy; and it docs not appear how it might
Cdtiie there. I would therefore submit it to
your lonUhip, whether, without they give
an Account that they have msde search for the
original, this is any evidence at all of what
ihoy bring it to prove P
Dut, gentlemen, if it be evidence at all, t
submit it to your consideration, that as it is but
an entry, and considering what coroiuiny it is
found in, that it can have no weight. If it had
hern found in an ancient corporairan-book,
amongst old entries and anthentie records (»f
the ciiqioration, it would have oome befhre the
Court and you with some autlnn^. But, as it
if found amongst a hundred lueocllueaiu
things no way relating to the oorporalioo, co«
pies of leases, the resolution of the jodgea upon
tiie statute of queen Elizabeth relatrng lo the
poor, amongst many misoeihiiieoiM things;
and very prolNibty this might be Mw«d in the
middle of the book, for it begins in the SOOth
page ; I isay, considering the company it keeps,
and the trifling thinsv it is foooa amongsl, it
can have no weight ; I submit, it ia a bosk
that can have no authority at all.
But, gentlemen, if it be any dridence ataU ;
I submit it to yon, that it can be no evidenee
of the matters in dispute. It it not sakl to be
the Coslomal of Hastings: that, gentlenien, we
shall read to you : and though there may W
some eencurring customs which relate to all
the Cinque Ports in general ; yet, anIeH thty
can shew the same custom to be in all the rniti,
a custom that relates to the right of all esa
have no weight in this particuUr borougb. To
have made this evidence, they ahouhl bare
proved by ancient charters aud records, that
there is a concurring right in all the Cin^
Ports to the election of freemen.
But, gentlennsn, we shall la v evidence before
you quite to the contrary. VVc shall shew yoa
a cOjiom relating to eldest sons in other pOTb,
quite liifferent from this ; whereliy it wiU ap-
pear, there are distinct rights in all the poitf)
and that it was never pretended there was sm
uniform right amongst them ; though if tfiii
Customal he evidence, there must be a genoil
right of all the Ciuqne Port^, But, gentle-
men, taking it as evidence of the matters in
dispute, even then it is far fVom proving mostcf
the tlHogH they have laid, and but a ivy sligkt
proof of what they rely on.
First, Here is a negative implied: "Ph-
sunt Majores et Ballivi, &c." Af\er havis;
set forth the particular persons having a rigbtt
it tfocB on and says, the eldest son of a freemao
may be admitted, and that there are three wtvi
of admitting him :
** Possunt Majores et Jurati, BaHivi et Ja-
rati, &c. recipere et facere liberos triboi
modis !
<' Uno modo, per Nativitatem.*'
They are qualifications rather than rtghti'.
Possunt, &c. They may admit, and there ii
no distinction made between the eMcat fon vi
the other sons.
<* Alio modo, perLib^^lmTenellleDtlnDft^
quittit' :
" Tertio, per Emptioncm."
Such a man has no right; and yetthesam
words are used to those who c«mie in hyt
freehold, or by purchase, aa to those who sit
to he made free as eldest sons ; and therefot
it is no evidence of the right of an ekiest 9ti>
Docs it say, the eldest sons of freemen, bon
af^er their father's freedom, or within ibis li-
berty, that they shall be free ?—^
Lord Hardwicke. ** Uuo modo, per NUi«
vitatem infra Kbertatem suam, ai pMerMii
tempore nativhatb auta, fuit liber. "
Att. Gen. Vy lord, I aik pardaa; itt«r«
SS9]
upon a Quo tf'arranlo.
tbc oUirr wajr ; but I submit thai fl is no eri-
dcoCB of tfae elthnl laa. it does not tuy. " |>er
N>livrtai«nr ' ot' th* eliltnt eou ; iC be W any
CM bora alt*r Iiix beiiii^ admined into ilie Crcc-
rtnni, be bail d like ri^l Willi th* eUvil wti.
lioril Uarilwirkt. *■ Per NktitiUtem infia
libntalMti Dimin "
Mr. airangt. Williio liia rnocbiw.
I^Hd Harduitfkt. 1 wMD ihiukini^, ifhetber
il r*l«tMl to ttx traeilBm ot'lhe Taiher.
Alt. Cru. My lord, il is the " LibertBlsm"
•f tbe five tnittit, anil not of thiti particnlBr
InrM. Tsldiat; of ili« i;eueral priillef^of ilie
Ciaqu« fnrtii i>> un iinc«rtiiin evidence of wlml
|b*y contend tat. My lord, it got& on, and, wi
far w it in an Biitbucity estahlitbed in all the
pMli, il Mj'B, He IB to bihf an oalh to maiutain
Ih* hbrrli^B of tbe lire porlE, and specially uC
that port " iiU MKnniarainr.'' It iDyiibwn,
^ the riKiQilBttDn of bcinit tVee, llmt residviice
is absoluielv neocHary ; he Muiiot be >diniil«d,
TliiB
lord, i
As (bundatHin we |^ upon, anil 1 humbly np-
pndMnd \te shall «i(ab!iiti it by a very oirou^
My lunl, I rrclton that tbe 351h Article idey
barn rf».| eniiicly ile«troyH tbe credit of ibis
hook. The «n>r<l« are, ■■ Gt ijailibet ((audere
tanrfrnB libtrtnlera UuhK)n« Porluiiin per
Cnipliunem, inrcniel qiniaor inaniicajitores re-
•imtt* (Ic ninnHHii M Hineuiii pnemlu' iKrim-
ffcod'," They bate not sh^ivn that ibiB Ar-
Mebaseter been oitnidied with: thi'y bnta
nnrr prviliiced a time that Bneb " Manucap-
tofn" liBie br«n giyra, nr ihni they were eter
icqmred of any penim : aiiO Iberi'llBn- it ap-
p«*ri, tbit tbii nrelFDded CuitoniKl Imb been
■Itray* onpitdeml as a linllad, aa I woiitil voii-
(Mcr II ; for th?y would hiite observed it, if il
Iwl h^M tbe amient iait : and as they bc^D
iHth (hi* point. I tiuhmii it to ynur lordabii*,
Amt H shoald not he left nut of tbe case ; lie-
wUf, ft Isnroeisary that they be iteidenl wiib-
In tb« boruujfh.
My hM , and ([enlleinen of the jnry. ns to
the ef ideni.'G that ha* been p^eo frntn ine eti-
IrieB rt-ad ; io comidering Ibis cortiDntinn, one
gnera) obKrvaliun may lie made, that they
■WKTery weakargvownt, if any, of what they
af« tfM^bt to prove.
Mjr MM, ihe MiiDdiiiDUS admit! a preierip-
tim ; and in makiDg out a cuntom in ibe ciiBe
«f a horoDicb. they Bhoiild (;■*" '<■ ^idi^oce
■Mre aacieni entriea ihan any of these Ihat
'have been reail. They hnie gone no fiirllier
4Mk llian leos. although in the book* tben;
JW* Buch oltler entrin. Ii may be uid by the
nen of the other »ide, thai goinf back n
I greDt way back ; and if
belnr
; but
'luiBitely for Ihem, ^hat In tliis
~ r« regular entries, from the
> this linie where ibry hove
bejphi ; and tliete is no io-
irone clnhnRx;, or any Min/
m rti^i ot an i4de«l ton ; anil
wck for !tO0 ynn bofure
A. D. nSG. £890
ihry begin; which, I humhiy ap^trebetid, will
be a Btiting ubjeeiion tn every entry they bav«
i-cad. A iiraaf from 1608 is hot a sligfal evi-
lipnce of an aDcicDl eiiilorn : and aa they bate
Cved aooiher diflerenl ciislofn, and ihere hi*
n an intermiisioR for ao many years, thi*
applicniion of tbe pUintifTs ran ju-oceeil finia
nothing elBe but tlie satne liiii[iaiii spirit thai
DOW prevail* in ibe corporaliim. Prom 1691
M1716, they have proiloced do fuolsle|is of
this right, for S5 years IngeUuT. Can il be be-
lieved there was any right, when fur S5 ycara
tM> eldest son ever claimed a riiflil ; 1 any,
tvhen it appears nobody ever ulniiued it during
that tune, or, it' they did, that tliey were re-
fnaedP And, my lord, if they were refusod, it
ia a stronger evidence.
Mr. Slrmgt. Vou are mislakea. Hr. At-
torney ; there was John Oeery adinated the
SSibofOcintier, 1707, and Joliii llustey the
9th of Janaary, 1C94 ; and we have sevetat
All. Gen. My lord, they have divided their
evidence iulo three parts. In ilie Ursl viaukc
ibev have given no evidence
I'.nnI Hardtcitke. That thin, time out ol
minri, baa been the oustoin.
Alt. Gen. My Inid, 1 wonlil conaiJer, botv
far their e*ideooe nuppoiU the ri|{ht the ptatii-
tiff has laid in the lUamlainua, and h hat they
fanve proved,
And, will) great ■ubmimtinn Io your lordship,
I mu9l insist, that tbey Imve proved no more,
Mian thnt eldest aoni ol trvemen bare bernud-
mriiH for a fine id fy ad. tor tlie eniriea aH
are, un their praying to be admitted. Attd, my
lord, it is iiu wonder ; liir we shall ibew your
loriUbip»eTeral hundred iDstauuus of persona
who were adniittHl during the litne Ihese free*
men were admitted, who wrre younger sona,
for their (ioes of Oi. M. ouil they hate pro-
<1uctd but 14 instaucra of eldest aonsi thev
have shewn tbey were •dmitlcd, and proteiil
the fine paid by them to be 6i Hd. >\ e have
other ioBtaiicefl of sons who pHid lit. 4d. And
t herefbre Ibey might as well ssy, aincc Ihere
ia proof, that evury body paying ISi. 4d. has
OB good a right to b« adaiitted as the ehlest
SOD ofa freemni) ; fir il is upon paying 1-ti. id.
and tbe eideat ion's admiraion is upon paying
(It. Sd. and if it be an argument of a right, it m
a ri^bt by payinif 6i. Sd. and evciy body, from
their own aocoonl of the matter, has ttie Mme
right for 131. id.
My lord, in any of the entries, there ic no di»-
tiDciiua made in ibu arfniisnoii between Ui«
■ooa and others ; tbey all oome and pray Io be
admilted ; aumxtiiues it i« n|Hin makiag it ihek
humble reiiueH, flnmeiinies upon their eanwal-
ly beseeching, that they ar« to be made ft«a.
Thoy all ask to UiewiiDe laannnr, wlietlier
thny an sons or no, and are matte Iree ; Mid
Iherelbre, ou ibcirnivnunlrHa, it apneoralu be
afarourifrantml lo eldest son* •• welt as otfarra,
n|H>n their atkinf that ikey might have it ;
■nd Iheretore they nrc indulged with a laMtr
(inc. Tbey r«ly much ou lfa« liiiti of 4lv4|^'
Sgi] 10 GEORGE U.
huU if it proves any ibinsr, it is (as I liambly
apprehend) an ar{|umenta(;ainst them.
My lord, in tlie next place, they haf e laid
the custom to be, That this eldest son be bom
within the town, after the admission and swear-
ing oFhis father ; then it is that the son is to be
admitted. But 1 do nut remember that any
one of their witnesses has confined it to this
(I ask imrdoii if I liave foi^ot) ; but they said,
some of them expressly, that the being* born
after the father's admission, or within the town
of Hastings, or out, made no difference. But
they hufe endeavoured to supply this from
their entries, by saying, that they arc men-
tioned in the entries as eldest sons, and there-
fore they were admitted fur 6s, Sd, : But Uiis
infers nothing.
Gentlemen, we cliall shew you, both by
entries and Jiving witnesses, that there has
been no distinction made between the eldest
tons and other sons. It was no indulgence
therefore to them ; but the same to the other
sons of freemen as well as the eldest.
And, my lord, we have many entries in the
books, where only the sons of freemen are
mentioned, without taking any notice ef the
eldest ; which i'ully proves, that, if the point
rested upon their bleiug eldest sons, and born
within the borough, alter the admbsion and
•wearing of the iatiiers, they would have been
particularly entered so in the books, and is
a strong presumptive evidence against this pre-
tended right of the plaintiff.
Aiy lord, we have some instiinces where
they are called the youngest sons, and were
admitted for their fines of 6s. Qd, upon their
coming and humbly praying that they might
he admitted into the franchise of this town.
That therefore being added, strongly shews,
jLhat they had no regard at all to what the gen-
tlemen of the other side principally contend for,
the right of eldest sons.
Besides this, gentlemen, we shall produce
to ^ou many living witnesses, very old ones,
who will prove to you, that the mayor and
jurats (the charter ticLng silent in this matter)
bave time out of mind admitted persons at their
pleasure, and this has been the ancient custom.
And, gentlemen, as their entries go no fur*
ther hack than 1008, so their living witnesses
^0 not make it a jot the better. They do not
say there is a right in this borougn, in one
instance, of their own knowledge ; they do not
say a word of any distinction, whether they
are born after the admission and swearing of
the father, or within the borough ; and one of
them expressly contradicts it. The evidence
they have given is nothing but a tittle-tattle
discourse of what they have heard, that the
eldest sons of freemen had a right.
Therefore, gentlemen, as to the point in
question, as they have entirely failed in their
entries, and us the living witnesses they have
brought to support it say little or nothing to
tlie nurpose,-— one of them says, when he de-
tircu his freedom liimseify the town clerk an-
nrarwl the mayor, Sir, yoa may do u you
Case of Henry Moore^
im
please. He did not ask him, whether be was
bom within the town, or atler his fatJier became
free, and mentions a fact strong to the contrary.
And, as some of their evidence cooaes down so
low as 1729, one of them tells you, that nhea
one was made a justice of peace, the eldest
son of a fi-eeman came to the court, and de-
manded his freedom, and was absolutely re-
fused ; and that he did it nine years ago, soma
of them say aliout twelve. So Uiat, gentlemeot
their living witnesses give but a slight evidence
of one part of their custom ; and as to the other
part they have given no evidence at alL But w«
nave many old witnesses, %vho will give voar
lordship and the jury no wrong views of the
manner of admitting freemen.
My lord, we shall begin with the Customil,
which is said in the title to be the Cuttomtlsf
this town; where the fullest directions are
given as to the manner of electing freeneB,
and yet there is not a word said of the right sf
the eldest son.
We shall then, by reading many entries oat
of the corporation -hooks, shew, that no notiet
at all has been taken of eldest sons, in distine-
tiou to other sons ; but that they have all been
admitted promiscuously.
And then 1 shall trouble your lordsliip to ny
no more; but call our living witnesaea, wlio
will fully prove to your lordship and the jury,
that the mayor and jurats have, time out of
mind, admitted freemen at their pleasure; and
that, besides being the eldest lOD of a five-
man, and bom wilnin the town after the ad-
mission and swearing of the father, be has i
right in respect thereof, but it must be on ano-
ther condition, as necessary as any of the former,
upon paying a certain fine. The Mandaniw
goes on and says. And also upon paying a rea-
sonable fine ; and the writ commands the
mayor and jurats to admit him upon payings
reasonable fine. So that, my lord, 1 Ukeil,
by the writ, that fine is to be as ooccssary
in order to the person's being admitted, as any
of the other qnalifications mentioned in the
Mandamus: And, my lord, 1 humbly appre-
hend, they have proved it a certain fine, in^eid
of a reasonable fine.
My lord, a copyholder lays a custom, to be
admitted to copyhold lands upon paying a rea-
sonable fine : It', upon the proof, it comes ont
to be a certain fine, he must undoubtedly fail ;
for in copyholds there is a known distinctioa
between a reasonable fine and a fine certain.
And, my lord, I humbly apprehend, that, in
point of Uiw, cases of copyholders are parallel
with the present.
There is as much a distinction between a fine
certain and a reasonable fine in the present
case, as in the case of a copyhold.
My lord, they have fully proved 6f. 8i<. to bt
constantly paid, which is a certain fine, upoa
every admission of an eldest son. The mayor
cannot contend ; if they offer that fine, tncj
have a riffht to be admitted. They therefon
have fail^ in this point \ it it not a *^^
but a certain fine.
tSS]
upm a Quo jyamttdo.
A. D. 17SI-
Uy )drd, ID llie atxt ptace, we ihall Mlleri- '
deuce to prove, that, trilhout resilience irilhiii
Um bnrouKli, no onecancTet be admilleil a
fraeawii ol this lonn and pari : anil 1 lake this,
my loril, to be a general rule in most curpors-
tioas ; It being unreasooattc thai any man,
who jots not reside iu tlie boroii([b o> nhicb
ba i* free, sbouIiJ have a shtie in coDiluclins;
Ilia aflrairs of that Imrough. AdiI altbougE
ibc cbarteT 19 silent lo this affair, yel, my lorit,
hMide* the geaersl rcaaoa of the ibiag, we
iball Kliew vDur loriliihip and the jury a by-
inr made •fiOTe ti>o buixlrei) years ago, by
wUcb it UttectareJ, that if any uoeRho was a
freeman removed out of the borough, aiul
■boiilil dwell out o( llie towu, bqcIi freeman lost
■U hi* rif[ht. ApJ we sliall prove by several
aaaeai living wilncsses, that residence within
the borough was always necessary, aud tlial
Ihii ban been ihe coastant usage.
tiy lurd. upon ibe whole circumslaDcex of
dlia cue, we heg leave to insist, that they hate
Ml proved ibree parts of the custom, as lliey
. b^c laid it in ibe Mandamus } and lbal,aBlo
At liiurth part, they bare proved directly
,A> Contrvf : and llierelbrr, gentlemen, we
boM yon will find a verdict liir the defcuilauls.
Stfj. SkinBtr. Uav it please your lordship,
and you geuilenien of the Jury : 1 am also of
couiuel with the defendants: and Mr. Atior-
to you l>y the gentlemen of the Other siile, as
. w<Ji u in stating the cvideoce vre are to lay b«-
fecc jou, that I need say lillle. —
Lord Hardaicke. Yon are not going to slay,
Mr. Strange, I hope: we are now coming to
a meter iai part.
ScTJ. Skinnrr. My lord, the right the plaia-
fiff has laid in the fllandnmus is, tbat every
m, being the eldest son ol a freenisn, born
■ Um town, after the admission and swear-
irWi ftlber u>io the office of freeman, has
1) in ramect thereof, and alau upon pay-
KaMDaule iine, to be made tree : end
K bat* endeavoured to prove this riglii,
T )|y producing an old book, called the
— 1, as an evidenco of tbis right: but it
IS BUlliority ; it has no dale ; and
~H, Ibey say, is an evidence of its antiquity,
bol nilhout toy foniidatioD from the book:
dWK are several entries entered pi iur to it j it
ll sot paged regularly ; it is Id ilic middle of
die boob, and yet it is marked ful. 1. And
If we liwk into the thing itself, it tel1« us there
•ft Ibrce ways of makmgJVce, viz. by birth,
if bam within tlic town, aud after the swearing
end •dmimi'in of the father ; b^ the ')inrchnse
«r a frra:bold ; and by redemption.
My lord, they have shewn some instances
aflbe fint; hut as to the second, they bate
ihewn no purcboscr ufa freehold that ever was
^^1*- Awe i aud we shitll prove itiaiiy persons
Mthz in the town that bavo frcehulds, that
J**«r wncsiaile Oee.
^^Rm next eridetice tbey have given is from
~ ' V (pf suss, wbo liaiebMn made free as
tSM
COM orrreemeii ; and this tliey wonid have ua
take BSD proofof ihei'usloiD. nTarighliiilh*
eldest son, born aflHr tlie tVeedoui of the father,
Iv be made free : for they say, it is in respeM
ibemof ; that he must lie the son of a l>«eiuai)w
aud horn after bis failirr was made free. And
all the instances they have produced of tliis
BioooDt to no more, tlian tlist such a une was
admltteil, being the eldest son of a frcoiuau,
not because he was an eldest son, and born
after bis taihor was made free.
My lord, they have produced copiea taken
out ol the register- books in tlastiags, by whicb
i( appears, when these ions were baptized : but
itiBnotgirenasateasoaiu any of these entriaa,
tbat he was admitted into the Irecduai, becauaa
he was born there; though, in fact, it might
be so, and that is the right they coDlead for.
Hy lord, I submit It to your lordship, tbat,
ns to the fine, uulbing conclusive can be drawa
from thence, that there i<i an* right in Iba
eldest SOD of a freeman. The Oae paid bv him
isUt, 8J. 'quia pater suua liber est;' uiatia
the reason. Ho; he is not adiiiilted Into tha
Trredum because his father was a freeman ;
but lie is ad^iiiled for 6t. 8d. aot because hia
ftaher was a frceniao. Thix tliercrore does
they read, James Lasher, among alt Uieentries,
was admitted upon any other terms Ihanhia
humhlu peiilion and prayer to be made free.
He, indeed, instantly required the freedom,
and by the consent of all he was admitted. In
all the other iiislooces it is said, at his humble
request and desire he is ailmilled : nnhody in*
sitted on, or demanded ibis tighl.
My lord, as tiiey bite laid the right, there.
is a fiirllier qualification necessary, viz. oa
paymeut of a reasonable fiue : and I submit it
to your lordship, that they have proved it a
line certain ; anil that therefore nothing is leQ
to the mayor and jursta iu this affair, but la
ad mil the ]>erB0nupon paying Qi. Sd. andclamt-
ing his freedom.
But, my lord, we lay, a furl her qualificatioa
is shsoliilely necessary, and thst is residence :
and thi» appears from an entry in tbis very
C'lislamal lliey hove produced. And, tny lord.
nobody is ever admitted, but nn taking an oaili
10 observe tlie si atities. nrdem, and by-laws of
the borough vhi ciwiiioralvr ; and iherefbra
the person admitlol into the treedoui must be
comiiiorant In the place of w hirh he is fre^
And, my lord, by a by law of tbe 19th of
April, the'lStli of queen Elizabeth, they were
not only to be comiiioraul, but to continue to
live there; and ifany one admitted «ent end
lived nut of the town a year and o day, he « a*
(o be excluded from any privilege or freedom
within that borough: and this by-law baa
been contiantlv oMerved ; aud yet, tny lord,
the plainlilT Aloore, tliey do not «o much ss
vrelend that he js resident within tbis borough.
We contend not, whether the sons of freemen
are intituled to I'reedums ; but we any, that
freemen's ions and foreigners arc in the lamf
8993
10 GEORGE II.
Cau ofHenrjf Moore,
[9W
be read.— Read the entr>' of John Hall, ad-
luiited for a fine of 20t.
Ix>rd Hardiiicie. Don't go into the reply,
before tliey are i^une thniucirli ihedtftriire.
Att, Gen. What hr >l. i*. ihat?
Crantton. O.'itfofthe (or|»oratiori l>ook8.
Ait. Gta, Yuu ha'! It \rr,\n the f>WD- clerk,
from amonif liie reconin ot the iuv« n ?
C'unston. Yes.
Mr. Manh, What i>ook is that, Mr. At-
torney ?
Alt. Gen. It ia the Custom al of Hastings;
that \& -i trtansldtinn.
Mr. Marsh. Wlial lansruacfeis it in ?
Ait. Gen. It ia in ul.! French.
Mr. Strange. Tiiat bound up with ours is a
tran»»Iation, and thai you say is the original.
Att. Gen. I Mieve so.
Mr. Strange. (Luuksupon it.) ThisCustnmal
is fiilse.
Alt. Gen, It is a translatiuB, and may be
wrong translated.
Mr. Strange. We*ll see that
Att. Gen, Read it.
Blr. Ho/»f^itrpads-*(ThecopyiooId French.)
'* The nNu<;e of Hahliii(j^ time out of miud —
<* Die Maii,aono HO Klizae—
Aft. Gen. Read that relating to the making
of a freeman.
Mr. Holmes redLiin:
'* If a foreigner resides in Hastings for a year '
and a day, he may come befurc the bui'itf and
jurats, and be admitted to the freedom upon
taking an oath.'*
Att. Cen. In order to he admitted a freeman,
be is to 8iay u year and a day.
Serj. Ej^re. Have y<iii hniked o?er that book,
Mr. Holmes?— Mr. Ilolmes. Yes.
8t'rj. Kifrc. in order to be u freeman, be is
toc(»mo and res»ide a ycar'nnd ^ly ; and it' he
be of a good conversulioo, then he is to he ad-
mitleil.
Serj. Kyre, Is there any o:her custom in
thut litMik relating to making of fteeinen t
Holmes. No.
Serj. Eifre. Read the entry of the 3(ith £d<
ward 3.
Associate reads :
** Memorandum, quod in pleno hundredo
tent' apud Hastings, viz. die liominica prox*
ante festum .Annunt* beats Marite, anno regni
Regift Edwardi 3tii k Con(f 36to, ct)ram BalP
€1 tot* Communitat*, Williehiius de Bourn, et
Johannes HP «jus, recep* sunt ad libertat* de
Hastings, ct dederunt commuuitat' unam pipam
Tini, de quo satisfec'.*'
Lord Hardtvicke. That is the admission of
particular persons. Is there any fine in that
admission f
8eij Ej/re. A pipe of wine, my lord.
Att. Gtn. We shall shew, niy lord, a con-
curreut proof of Gf. nd. paid as a line certain.
LMd Hardwkke, Can you shew any admis-
tioiis of per«>na who wer« eldest iou«| nitbout
paying any fioe at all ? *
Att. Gen. Mv lord, it ii improper to call
such an one au eldest son, if the fatlier had no
other St n.
L« I .! Hardwicke. There two pertoos were
admitted : !iui in that entry uekber is mention-
ed to be the son cf a freeman.
Att. Gen. It is for a pipe of nine; that, id j
Irrd, '8 one of the "ii^hts ihey admit upon.—
Hi.'ad the adntissi'''.! id* William Oibdeo, fbl
147. He \«as bdnutifj the 7tb of May, the
7ih of James the ist.
Associate iru(\»:
** Hastli.gs, M. Ad fts^^MiDllat' tent' ibidem
7^ die Maii, 7' Jacobi Re$:i8 primi, Gtdielaoi
Cobden admi^sua est ad lihertatem huj'.is vUbo^
et sacramentum suum more solito pne&titit, ct
osculatus est malain deztram Mujorii secoa-
dum usum, pro fine suo ; (}uia filiui liberi ho-
»
mmis.
m
I/>rd Hardvickc. Tlie Ciiftomal of the 6fe
ports does not fix what the fine shall be.
Mr. Strange. My lord, proving that all Uie
sons are admitted, is proving that the eldeft
son is admitted.
Lord Hardwicke. You have laid it * hi re-
spect thereof,* which you need not have dooe.
I cannot imagine wliy it was laid so, * in respect
thereof.*
Serj. iv:yre. Turn to fol. 147. Read the ad-
mission o) John 8and, the 14th of July, the 8ik
of James the Isl.
Associate reads :
'' Hastings, *s. 14 Julii, 8 Jac. 1, in pleoi
Curia venit Johannes Sand, et (»eiit libertdtrm
hujus vitlue, ct ad missus est ad hbertatem, qutf
paier suns liber erat, et sol* 6<. 8</. et fecit iu«Ie
sacramentum, et oscular it malam daxtram Ma«
joris more solito.**
Mr. Strange. We may admit many of thfie
entri'*8, Mr. Attorney, if you will tell 6s (of
what purpose you read your entries ufer a^n.
Att. Gen. These were admitted as toai of
freemen. We read them, to sl>cw a differfot
cubtom from what you have laid.-^Read Na-
thaniel Lasher the son. He was admiitedt
' quia filius hberi hominis.' Turn to fol. 17^
Associate reads:
*« Hastings, ss. 1613, 11 Jac. 1, SdMartTi,
hoc amWy came Nathaniel Lasher, son oi'HtDH
Lasher, jurat, before Mr. Mayor and bis bi«-
thren, and prayed lo be admitted to the liberty
and freedom of this town ; and was admiUcSi
sworn, kissed the right cheek of Mr. Mayor,
' more solito, pro fine 6s. 3d. quia filius Ubcn
* bominis,* *' ic
Att. Gen. Turn to fol. 179. Read JoU
Isted.
Associate reads r
*' Hastinifs, ss. 1614. * Dccimo qaarto di*
' hoc anno,' came John Isted, and enxfd
to lie admitted to the lilierty and freedooi if
this town ; and by Mr. Mayor and hiabralhitf
was admitud, tod aworD, and kand tht f^
901]
vpon a Quo Warranto*
A.D. 1736.
[902
cbeekof Air. Mayor, ' moresolito, pro fine 6s,
« 8dL doaUxat, qma filliis est liberi huiniois hu-
•jus Tlllffi.' "
Lord Hardwicke. Wbst meD do yoa admit
Aere?
Att, Gen, My lord, we admit mf»n as the
•OM of flreenieD, and that pay 6s. Bd. — Sow
lead the entry of the 3 Ist of March, 1688, of
Ike admission of James Batcher, jun.
Serj. Byre. James Batcher, jan. son of bis
6tber.
' Hr. Strange. That is just the same as you
md before.
8erj. Skinner. Read William Lot eUL
' 8ir T. Abney. We read that.
. JiKicMi/e reads:
" Hastings, IS. March 31, 1638, 14 Car. 1.
Atthiscourt,Jame4 Batcher, jun. son of his
fiitber, a freeman, is now made also free, for his
fine of 6<. Sii. took his oath, and kijsed the
Bsyor's right cheek, more soUto^^* &c.
8eij. Skinner. 1 beliere we must trouble the
4octor once more.
Att. Cen. Mr. Carlton, you told me you
ftid lifed all your time in Hastings, except
iboat fourteen years ; you say vou have been
it their elections ; pray, who nas the right
Is be elected a freeman of this borough durmg
joor time ?
Carlton. Those whom the mayor and jurats
pletse.
Att. Gen. Has not the eldest son of a free-
MB a right to be admitted ?
Cariton. No ; if there had l>ocn such a cus-
tBi,U would never have been denied.
Att. Gen. Did you ever know any body,
Ikitwas an eldest son, insist on this right?
Carlton. Yes; one Everoden insisted on it,
iidwasrefuse<l.
Att. Gen. How long is that ago ?
Carlton. It was l^fore 1 was a freeman,
iboat 35 years ago.
Att. Gen. So you sny Evernden demanded
bit freedom, and was denied ; Oo you know
tUiof your own knowledge?
Carlton. 1 have heard it, but do not know it.
Att. Gen. Who have you heard it spoke by ?
An the persons dead or living ?
Carlton. I have heard it by some persons
iriag.
Ait. Gen, Was it the general reputation in
tbetowB, that this Evernden had no right?
Carbon. Yes ; he was looketf on as an im-
pdeat fellow, for coming and demanding it.
Alt. Gen. Did you ever know any body ad-
mitted upon this right ? — Carlton, No.
. Att, Gen. Howlong have you been a jurat?
Carlton, Ever since the year 1701.
Att, Gen, That is 35 years ago. Did ever
(Bj body before this Evernden come and de-
tad to be admitted as an eldest son ?
Carlton. I do not know any one.
8^. Farker. Suppose the eldetit son of a
^Man apply to the mayor and jurats to be
•od they think fit to admit him ;
how. do the corporation proceed on that occa-
sion?
Carlton. They apply to the mayor and jurats
separately at their liouses, and ask that favour
of them ; and if they consent, then they come
to the court-hall, and ask it of tbeni again.
Serj. Parker. What follows upon that?
Carlton. Then the mayor asks the gentle-
men, if they consent, and are satisGed, and
whether they are willing the person should be
made free ; and then they put it to the vote.
Serj. Parker. Do tliey make any distinction
between the eldest and youngest sons ?
Carlton. No ; the majorii}* determines whe-
ther the man shall be made free or no.
Serj. Eyre. If any other person applies to
be made free who \n not a son, what steps da
they take then ? — Carlton. Ju^t the same.
Serj. Eyre. You are the eldest son of a free-
man, are you ?
Carlton, Yes; butnot born within tlie town.
Sir T. Abnty. Mr. Carlton, did you know
John Geery ? — Carlton. Yes.
Sir T, Abney, Was not he admitted to the
freedom in your time ? — Carlton. Yes.
Sir T. Abney. Was not he the eldest son of
a freeman? — Carlf.on, Yes.
Sir T. Abney. Did you know John Oliver,
John Chambers, Benjamin Stevens, Philip
Stevenstin, William Shorter, and Jacob Fant-
icy ? — Carltoji, Yes.
Sir T. Abney. Have not all these persons
been ailmitted in your time, as eldest sons ?
Carlton. Not because they were eldest sons,
but because the mayor and jurats thought ' tit
to admit them.
Sir T. Abne^. You said you did not know,
but you believed Evernden was refused ; pray,
do you believe or fancy any other person, who
was an eldest son, was ever refused ?
Mr. Strange, Do you remember Boy kett the
dissenter, that applied to be admitted to his
free<lom ? — Carlton, No.
Mr. Strange. Do you know no enquiry
made by the town clerk, whether he was the
son of a freeman, or not ?-^Carlton. No.
Mr. Strange, And u|)on admitting freemen,
you say, that is the only (piestiun put by the
mayor, Gentlemen, are you satisfied ? and if
any ol)jects, he puts it to the vote ?
Carlton. Yes.
Mr. Munh. Do you remember Tho. Lovell ?
Carlton. Yes ; he was mayor several times.
Mr. Marsh, l^o you remember Mr. Waller,
the town clerk? — Carlton. Yes.
Mr. Marsh, How long is it since he was
town clerk ?
Carlton. Since 1 was upon the liench.
Mr. Clarke, Do you remember nothing ot
Boykett ?—Car/<o«. No.
5lr. Clarke. Nothing of his being refused ?
Carlton. No.
Mr Clarke. Call Robert Bartho'omew again*
(H^ not appearing.)
Mark Bay ley sworn.
I^Ir. Marsh. Are yoa a ftt^^m-wi^
90S] 10 GEORGE II.
Batfley, I was one, and am disfranchised.
Her). Skinner, How long have you known
Hastings? — Bay ley, £? er since I was bora.
Serj. Parker. How old are you ?
BayUy, I am 76 years old.
Att. Gen. How long hare you lived there ?
Bayley. I have lived there all m^ time.
herj. Skinner. You ha?e been a jurat there,
ba?e not yon ?
^y^y* Yes, six or seven years.
Att. Gen, How do you make freemen f
Bayley. You must apply to the mayor and
jurats, and desire that they would please to let
you be made free.
Serj. Skinner, Suppose I was the eldest son
of a freeman, might I come and demand to be
free?
Bayley. No ; there is no such thing as de-
manding it without the consent of the mayor
and jurats.
Serj. Parker, When you come before the
mayor and jurats, does the mayor put the ques-
tion, whether the person shall oe admitted,
or no? ,
Bayley. He says, that such a man desires to
be made free, if you think fit of it.
- Serj. Parker. The eldest son can demand it,
if he thinks fit, cannot he?
Bayley. No, no ; we have nothing at all of
an eldest son.
Sir T. Abney, Are not you the eldest son of
a freeman ? — Bayley. No.
Sir T. Abney, How long have you been a
jurat ? — Bay ley. Six or seven years.
Sir T. Abney. How long have you been a
freeman ? — Bayley. 48 years clear.
Sir T. Abney. What profession are you of?
Bayley. lama seaman.
Sir T. Abney, Pray, Mr. Bayley, were you
always resident in the borough ? Did you live
there all your life ? — Bayley. Yes.
Sir T. Abney. What, when yon were at sea ?
Bayley. No, but at all times when 1 was not
at sea.
Thomas Caswell sworn.
Serj. Eyre, How long have you known
Hastings ?
Caswell. 1 was born there, and have lived
there almost all my time.
Seij. Eyre. Have not you been a freeman
auda^rat? — Caswell, Yes.
Scrj. Eyre. Are nut you disfranchised ?
Casfcell. Ye<:, I am now disCronchised.
S(*rj. Elf re. When were you made a freeman ?
CasmiL In 1717.
Serj. Eyre. When a jurat?
Cas7i'ilt In 1726.
Serj. Eyre, Pray, Mr. Caswell, how do they
make tree ?
Caswell. When I was made free, I asked the
mayor and jurats, although I was the eldest
aou of a freeman.
Serj. Eyre. Acquaint my loni and the jury,
what happened on your applying to be made
free
Cam>elL I applied in 1717 to the mayor and
jarati for ihdr good will to make me free.
Coie (jf Henry Moore f
[901
Serj. Eyre. Is there any differeieebctwcca
an elcfest sou and another in makiog five?
Caswell. No difference at all, but that one
paya half the fine, and the other the whole ;
out the consent of the mayor and juialaistho
same.
Serj. Eyre, As to non-residenee, do thc^
ever make any persons free, who are aol nth
dent within the borough ?
Caswell. They never make any free, bet
such as are resident.
Serj. Eyre. Has any person a right to hi
made free, or is it in the pleasure of &e corpo-
ration?
Caswell. It is entirely in the pleamre of lbs
mayor and jurats.
beg. Eyre. A man by purebasing a fme-
hold, has he any right ?— 'Caswell. No.
Att. Gen. Is he free of the other four Cio^
Ports ?—Cfl«»f//. No.
Mr. Strange, W here were yoa bom f
Caswell, At Hastings. Mj father was a
freeman when i was born, and many years be-
fore. That is my father's copy. (Piedae-
ing it.)
Mr. Strange, Did you take up your freedon
by that copy ?
Caswell. I wish I could ; 1 should have had
it sooner.
Mr. Strange. How old were you when yoi
were made free ?
Caswell, I was twenty-six years old.
Mr. Strange. Did yon ever luiow an eUol
son of a freeman denied?
Caswell, No ; but it is in the breasts of the
mayor and jurats, whether he shall be free
or no.
BIr. Strange. Was your father the son of t
freeman ? — Caswell, 1 cannot tdl.
Mr. Strange. How comes it upon yoar fin
ther*s admission to be marked the day he wai ,
born ? — Caswell. It is the time I was born.
Mr. Strange. How came it there ?
Caswell. I wrote it from a Bible where oj
father had entered it.
Mr. Strange. For what purpose ?
Caswell, 1 wrote it down now, upon this IBB*
mons, to shew how old I was.
Mr. Clarke. What is the difference between
the fine paid by freemen's sons, when you weft
admitteo, and now ?
Caswell, When I was admitted it was 6s. 8i'
and now it is 20f .
Mr. Clarke. How long has it been SOi. ?
Casipell. Twelve or fourteen years.
Mr. Strange, if the mayor insists upon lOi*
yon pay it ?— Caswell. The usage is 6s. 8d.
Mr. Strange. But he might refuse it nowf
Caswell. 1 do not know.
Mr. Strange, Suppose he had asked tM .
guineas ?
Caswell. You ask foolish qoestioDS.
Mr. Strange. It is not your bosioett to Idl
me so.
Caswell. You do it to aggravate jooreaMe*
Mr. Strange, 1 uk you, is it not a luil—
for the eldest ton to bo adnitled, SfOB peyiif
upon a Qao Warranto.
i\t fiae u ihe tniyor ibtll (liink
Vo ; all the custom i>, that 6*. Bd.
I, •nd 13), 4J. by others ; and now
I is eoi.
ngt- Do you Icnow any insrance ol'
^■teilfotafiaeufSOt. ?
I know bol of one inslance.
gt. So yoQ lake it, uo person has
t made Tree T
I without tbe consent of tbe
W>llh>
Bourne sworn.
' Hasliogs T
ifr. Do you kc
Ye..
ler, Hon long liare yon known il ?
Fifty-eight years.
fker. Wliai inetliod miial a man
dmitletl a IVeeman ul' Hastinf(a ?
Tbe way is (o get tbe good will aod
^^ mnyiir and jurats.
dni*. Siippoaing an eldest son ap-
made free, iloea lie apply lo the
iuiaU in the saiue manner as dqd-
Yes, he muit make tbe same ap-
llai he any ri^rht, nilhoallhe
mayor and jurats?
Noue that I kiiow of.
Were Tou ibe eldest son of a fiee-
.' Did fon denianilitas a Hghtf
I demanded it as a I'aTour,
. Had yoa any right, in case ibe
jurats had refused yuu ?
•c Are the freeholder* within the
ilefree? — Buurnr. No,
^thpkkt, Suppose a man lias an ea-
It is all one, my Ion!,
-■^'icke. UidyoueTer knoivoneof
? — Beurne. No.
I. Did they admit you immediately
'licalion? or was there any dispute,
t should be admitted or no .'
Vet; it naatwoorthreecourt-days
Vftdmittedme; IbeheTF,iaall,abuiil
taicke. IVhen were yon admitted T
Id 1701, my lord.
wer. fSo it was six weeks ynu was
ISlTourf — Bourne. Thereabimls.
tntr. Vou went to tbeir huuws, ID
Ht Tou Taiclit be free ?
■Ym.
. Is it iheciiMom for any per-
_^_ n-reaideot lobe madi? free?
,No.
mcr. Did you ever know (he eldest
■MnaD refused f—iiuurf; "-
mtr. Nor nny uther* f
A. D. 1736, pW
Bourne, I cannot cay.
Hr. Strange. Donot yoa expect (o be made
free again f
Alt. Gen. He expects to be a freeman b«>
fore your client.
Lflrl Jlardwicke. Were yoo eter a jnratF
Bourne. No.
I>ord Hardaicke. Or • commoD-caiucil-
man?— &mmc. No.
Alt. Gia. My lord, we rest it here.
Sir T. Abney. My lord, I heg leare to trou-
ble your lordship with a Hord by war of
reply: and, notwithstanding what has iKea
ollereil by tbe gentlemen of the ulher side, |
agree, thai, upon tbe Mandamu*, we barg
laid down fuur Ibings as necessary qualilica-
tions for claiming d freedom in this borough :
Isi, That he must be an eldest son,
9d1y, That he be bom within the borongh.
Sdly, It must be aftar tbe admission and
swearing sf his father, And,
4llilyi It must be upon paying a reasoosbls
fine.
And, my lord, I humbly apprehend, that
if they Iiayc proTed that oiiy other of the "
or ihnl all the sons, are intiiulnl as well i
eldest son, il will nut at nil affect our
lorn : or, if we protc our custom larger tbaii
we hate laid it, thai il will not at all impeach
My tonl, a man lays ■ cusIdid. that he haS
a right of common li>r sheep, snd proves
right Id l>e for burses, cnws, and sheep loo {
this shall not impeach his custom.
Anil iherefDre, if any etideties has been
pien lo your lorilship and the jury, that nil
the sons of a freeman are iiitituteil In th«r
freedoms, iheii, my lord, ^/ortiuri, the eldest
Ltird HardBr'icke. Ilislsid ■ in respect then
of,' sir Thomas Abney.
Sir T. Abney. My loni,
bend, those words relatr '
father. It is, ■■ etery per
son of n freeman, and b
town and port, after Ihe admission and swear-
ing of his falher into the place and nfBce Of
<me of Ihe freemen of Ihc said lown and port,
lias a right, in respect thereof."
My lord, that, in common understanding,
cannot be in respect of his being born an
eldest son, bnt in respect of his father's being
sworn and admitted a freemati at Ihe lime M
his birth.
Lord Hardaiicke. Has a right in respect of
Ills bring born after his father's admission
ond swearing.
8ir T. Abney. And, my lord, the Customal,
i» make out that fact, says, ■■ Van modo, p«[
Nativitalem infra liberlatem siinm, si patar.]
siius, tempore nati* itatis sue, fuit liher i" If j
(he tsiber was a freeman at Ihc lime ol'lli« son's ]
birth, then he is In lie made l>ee, |
Mylord, we hsTesnppoiled tbiscnilam ia 1
(he strongest manner, b/ forly entries, by ■ 1
great number of lidng witnesies, and by ineic 1
own wiiueucs, Customal, and entrie* tool J
mbly ajijire-
3n, being theeldeat
907J
10 GEORGE II.
Case (if Hairy Moore,
[SOS
iatoinuch that one Robert Ererndeo is the
obIv |»ersoD ilivy Lave becu able to ihew that
vrai ever refused.
My lord, we have gone so far back as the
year 1588 with our entries, which, we faumUy
ap|»rehcnd, is a vcrv strong proof ot* ao an-
cient custom ; we lia%e brought it down to
within 20 ^ears of the present time ; and, iu
all that space, they have not been able to shew
one instauce of an eldcat son that was ever
refused ; and the entries arc equally full, and
have shewn iu the clearest manner, that the
eldest son of a freeman, horn within the bo-
rough, aiid after the swearing aud admission
of his father, was alway9 admitted.
My lord, as to what Mr. Attorney says, that
the rules laid down in the Customal as to the
making of freemen, that these are qnaliBca-
lions rather than rights, and that we have
not stated our custom properly, and are gone
on account of the commorancy ; my lord, 1
do admit, that if the witnesses had come up
to that point of commorancy, we must liave
given it up.
But, my lord, I must l>eg leave to insist,
that, although Mr. Attorney has bestowed so
much learning and time upon the words ** ubi
commoralur," to shew that residence arises
from the Customal, and from this article,
which we have laid down as the foundation of
our right ; and that the person admitted is to
take an oath to be true and faithful to the bo-
rough where he dwells ; yet, my lord, the
words *' Possunt Majores ct Jurati," &c. not
only imply a right, but they bespeak a quali-
fication : and, my lord, we have fully shewn
them to be rights that were never con-
tested.
My lord, another objpctlou that has been
made by the gentlemen of the other side, is,
that, as we have laid it, it in necessary a rea-
sonable fme should be paid upon the admis-
liou of every eldest son ; and that we have
given evidence only of a tine of 6s, Bd, and that
we should have given evidence of different
fines paid, in order to take in the custom as
we have laid it. But, my lord, I submit it to
your lordship ami the jury, whether the sum
required is unreasonable or no ? Is this so ?
Can it be thought so? If on a s|>ecial verdict it
were to be found, that every man had a right
upon paying 6s. Bd, I humbly apprehend, the
quantity of the sum must shew that it is -a
reasonable Ane.
Bly lord, as to the by-law they have read,
that, if any freeman depart out of the town
for a year and a day, lie loses his« freedom ;
with great submission to your lordship, 1 ap-
prehend it is not at all applicable to the pre-
sent case. It does not say one uord of what
is necessary in order to a man's being elected
a freeman. We say, that in order to be ad •
milted a freeman, a man must be an eldest
•on, born within the borough after bis father's
freedom : but they do not read one word out of
this by-law, tliat no man shall be elected a
frsiemaD, iinleai he bo resident; bat it says.
that, if any freeman go and dwell out of the
town fi»r a year and a (Jay, he shall for ever
lose his freedom.
And as to their living witnessFS, they, 1
humbly appreheud, will have little weight
with your lordsliip and the jury. They are
not so tree as oiks; they are men disfrao-
chised to serve a particular purpose. It is true,
they ara legal witnesses; but it will goto
their credit, and the jury will think they are
under a bias, and that they are to be made free
again, and therefore are prejudiced, and are
determined to kt?ep the borough in the saiiM
narrow hands they now have it. They bate
all said, that none but the mayor and jorui
can give a right ; and that, if J was to be lei
into the freedom to-morrow, (as Mr. Attorney
told you) there is no right but at the will ui
pleasure of the mayor and jurats only. With
resiiect to one of the jurats, and bis ovi -
ri^ht, Robert Bartholomew, it will have weight
with the jury, that he is disfranchised ; but
much greater, to prdve him |ierjured, which
we shall do by three witnesses uf undoubted
credit, whom we shall call to contradict ill
this talk that he tells you, that there is no
such thing as a right but at the will and pki-
sure of the mayor and jurats.
Gentlemen, we have no other evidence to
trouble you with, but to contradict Bartholo-
mew ; and then, gentlemen, we shall leave
it upon the strength of the cake ; and we make
no doubt, hut you will be of opinion, that the
plaintiff has an undoubted right, and there-
fore will find a verdict for him.
Air. Broaduay sworn.
Mr. Sir an fie. Pray, Mr. Broadway, do yoa
know Robert BarliuiomeM' ? — Bnjadiftiy. Yes.
Mr. Strange. Mad you any discourse »idi
him about the right of freemen's eldest soas.*
Broadicaif. Yes ; I was in company with
him about two years ago, at the sign of the
Blue Anchor in Hastings ; he then told me,
that the chiest sons of freemen had a rigbt Is
be admitted to their freedoms.
Mr. Strange, Did he say any thing, that
they must come cap-in-haiid to the mayor and
jurats, and beg the favour that they would
please to admit them ?
Broadway. No, nothing at all of that.
Mr. Strange. Did he say any thing further
about the right of eldest sons .''
Broadway. He said, he could remember the
time particularly well, when they were ad*
roittea without any dispute.
Seij. Parker, Mr. Bartholomew, is that
true? Were you at the Blue Anchor in Hast-
ings with Mr. Broadway ?
Bartholomew. No, there is no such sign is
Hustings.
bir T, Abncy, You must oill John SargeaL
AtL Gen, Mr. Broadway says, you told
him, that you remembered the tune ^rtico-
larly well, when the eldest sons were knitted
without auy dispute.
Bartholomtw. I never told bim N.
fqjon a Quo Warranio*
a peraoD who wai upon the pannel
id to ooe of the jurymen.)
Wmner. You roust not talk to the
*€ you a HastiDii^ man ? — **• No.
Min. He is upon the pannel.
Skinner, Did he say any thing toyoa
is cause ? — Jurymsn, No.
len, Mr. Bartholomew, do yon re-
tliat you said so, or no ?
olomew. Last sum mer 1 was there with
; but I never heard any such thing
h\,
farth. How came yon to tell them,
ID led to pry into the corporation-
Ahney, Did not you tell him you was
upon that right ?
olomew. No.
Abney. Who is that person?
olomew. The minister of the parish.
Skinner, 80 he came to pump you?
larsh. He knows he told them so.
Henry Dodson sworn.
farsh, Mr. Dodson, was von at Sar-
ith Ilobert Bartholomew ?
n. Yes, about two years since.
(arsh. Was Mr. Broadway, the mi-
the parish, there ?
n. Yes, he was in company with Bar-
r and me.
Tarsh. Pray, what was the conversa-
lation to the right of freemen ?
n. 1 met with Mr. Bartholomew and
1(1 way at Sargent's. 1 told him, the
f our meeting was to enquire of him
IS the flight of freemen's sons. He
t the eldest sons of freemen had an
rd rifi^ht to claim their freedoms ; and
that foriiiprly he lia<l hoen requested
p his freedom, but that he had refused
i*e in war time the freemen were
d with taxes, watchiog and working
id dav; hut that uflerwards he had
proper to accept of it, and was ad-
)r a bottle of wine. He said, he ap-
the mayor and jurats, and was ad-
'anh. Did you say any thing more to
1. He told me tliis ; but I said nothing
but took a iiicmorandum in writing
farsh. Did he tell you any thing more
hr.
%. He said, he looked upon the sons
en to have a riirht.
llardziicke. Was this at the time
V was with you ? — l)o(Uon. Yes.
tarih. Was Bartholomew sober ?
I. Yes ; it was in the morning ; he
k nothing but one glass of wine.
kinner. Did the parson go with you
at evidence f You was the attomry ;
arson go as another agent to find out
laoce?
A. D. 1736.
Mark Whales sworn.
im
Sir. Strange, Mr. Whales, do yon know
that old gentleman T-^Whalet. Ym.
Mr. Strange, Have you heard him maker
any declaration concerning the right of an
eldest son to be free ?
Whales. About 19 years 1^0, he said that
the sons of freemen had a right.
Mr. Strange. Did you never hear him talk
abont an eldest son ?
WhalrV 1 do not remember.
Lord Hardwkke, That variance of the fine^
I wish you would apply yourself to that point,
Mr. Strange. The admission seems to have
been npon ^ certain flne, 6s. Hd.
Mr. Strange. May it please your lordship,
and you gentlemen 01 thejnry ; you have heard
a very long evidence ; and as the gentlemen o€
the other side have been pretty minute in their
objections, it will be proper for me as shortly as
J can to reply to them.
And, my lord, the chief thing the defendants
contend for is, that there is no such thing as a
right to a freedom in this borough ; and that»
though the electing members to represent them
in parliament be one of the principal privileges
of cTery freeman, ^ct that there is no person
whatsoever has a nght to come and claim the
' consuetude rcgni ;' but the mayor and jnrats
may at their pleasure chuse members to re-
present this borough in parliament, and confine
the election in their own bands, and ma? chuse
them when, and in what manner, and what
persons they please.
But, my lord, to support this right, they
should have laid their iitiger upon something
that would have intituled them to this right;
and yet they have shewn no circumstance upon
the lace of the earth that can possibly entitle
them to it.
My lord, there is no corporation in England^
but where if a man serves an apprenticeships
he has, by that apprenticeship, a right to his
freedom, and the sons of freemen have a right
to come and demand tlieir freedom. But here,
my lord, according to their account of the mat-
ter, in no sha|)e or sort you can ever acquire a
right : a most extraordinary privilege indeed I
and, my lord, J would beg leave to make this
observation, thot, as they heganwith attacking
what sir Thomas Abney set out with, the an-
cient Custotnal ; so it appears, they have treated
it in a ludicrous manner, and with no regard at
all. They tell us it is bound up with a great
many miscellaneous papers of no use, and there-
fore it can have no authority. And, my lord,
this observation would have been material, if i|
had come out of our custody ; for then we
should have shewn why it kept no better com-
pany. But, as it comes out of their own cus-
tody, can we oblige tliem to keep their own
book better than they have thought fit to keej>
it ? Besides, mv lord, it goes equally to their
own book which they have produced ; it is
made op in the same miscellaneous manner
as osri IS ; and therefore this oLi«stion U 4|
oil]
10 G£0K6£ IL
t!iue ofHenry Mowt^
\Wk
•trong agaiDtt the uitliority of tlieir book at
Bot, my lord, I fobiniC H to yoor lordtUp,
tbmt there is no fomMlatioo at alJ toqoarrcl upon
this account.
Suppoae it had been found loose, in bo coni-
pany at all, and without an^ cover ; is it (be
woraei if it bad been loose, for bein^ stitched ?
]t rather argues it tO' be a book of great autho-
rity, and that this was done to preserve it ; be-
cause, whilst it lay about loose, it was liable to
decay; and in order to preserve it, it was
thought proper to bind it up.
My lord, they say further, it would have
been material, ifit bad be«n bound up with an-
deot charters and records of the corporation x
my lord, I looked at it, and saw that the very
charters themselves are bound up with it.
My lord, they tell us, this Customal, produced
by them, has not at all left it clear, that the
eldest 84IU8 of freemen have a rig;ht ; ami they
say, that whatever our Cnvtomal may prove,
that our entries, which have been read, are no
proof of aoy right ; they pray to be admitted,
and therefore tUey have no right.
But, my lord, I beg leave to observe, that it is
not a phrase that runs through all the entries :
in some of them, tlicy are admitted upon their
instantly requiring it ; iu others, it is secundum
tontuetudinem.
But, my lord, supitose it was so in all the
entries, it is the ccnnmun form of them, aod
of the admission of all the copyholders in
Enffland.
Lord Uardwicke. You need not labour that,
Mr. Htrange.
Mr. Strange. My lord, they say, there is a
circumstance of our proof, which we have en-
tirely failed iu,aDd which they would prove for
us, or that they shall help it out ; and that is,
that the party in to he commorant within the
borough : and to prove this, they have read a
byrlatv, that says not one woni that he is to be
commorant ; but that, if a man goes out of the
town for a year and a day, he shall lose his
freedom.
But, my lord, I humbly apprehend, that a
new by law, that appears before your lordship
and the jury to have been made but a year and
half, and contradicts nn old custom, is the
strongest evidence in the world, that it was the
custom till the by-law was made.
To what purpose else was the by-law made ?
They had better have rested it upon the ge-
neral consent, than have introduced a new
bye-law, which, upon the face of it, appears to
contradict an old custom.
My lord, Mr. Attorney, I think, was pleased
to admit, that there must l»e a Customal; and
that, taking this for evidence of the matters in
dispute, and so far as it is an authority, it says,
that the comers in per emptionnn must have
been commorant within the borough a year and
a day ; and he says, the reason of this is, that
tbey should have some knowledge of the af-
fairs of tba borough btfort they are made free
Cf it.
Bat, my lord, tbis oommoraBCy is not ean-
fined to the oomers in per empikmalu The
words of tbe 39th Artide are, '* £t nullus ftat
liber per Emptionens, qaotasque io Poito vel
Merobro, nbi libertatem desklerat, per anam
annum et onam diem permansk, ec si bene eC
bonesto haboertt,'* &c. To what end should it
be put, that a man who eomea into the free-
dom per empiionem aboold be resident a yeir
and a day ? «— —
Lord Hardwicke. It infen DOthing one way
or other.
Mr. Strange, But one bom out of tbe towo,
and bred out of tbe borough, it ia not neecsniy
for him to be resident, if the nnayor and jorati
please to admit him ; and yet every one bora
m the towUf though he be the son of a fm*
man, must undergo tbe same ezperimeBt bj
being resident.
My lord, the 34th Article, as to tbe wsHs
ttbi commoratur^ it is only a part of the oath
every freeman is to take upon bis admissioD,
<' That he will be good and faitbfnl to thekiofi^
of England and his heirs, and that he will sb*
serve the statutes of the five ports, and eipe-
cially of that port where he resides." And it
is not to be inferred from thence, that at the
time of his admission be must be commorant,
but that he will observe the statutes of the bo-
rough, and consult the good of it.
My lord, I do not apprehend, that by tbe
38th Article, a man, by being free of one port,
is intituled to his freedom in all the other ports.
The words are, *' Et ipsi qui sunt in omoibai
et singulis formis jJra^dictls facti liberi in aliqoo
Portu sive Membro, habeant libertatem consoe*
tam iu omnibus aliis Portibus :" i. e. As s
member of one of the ports, he shall have tbe
general liberty belonging to them, but not that
he shall he a member of all the five ports.
My lord, as to the words * in respect thereof,'
tbey insist, that as we have laid it, they exclude
all persons from being intituled to any freedom,
but the eldest sons of freemen.
But I submit it to your lordship, that at in
the Mandamus other circumstances are after-
wards mentioned, that those words * in respect
thereof,' are to be referred to the last antecedent
words, to the freeman's being born wiibin tbe
liberty, and af)er the admission and swearin:;
of his father : and unless something be brought
to make it improper to refer it to them, I
submit it to your lordship, whether it would in
a right have the consequence they contend
for.
My lord, the Mandamus says, that the eldest
son is intituled ; but this is not an exclusion of
the other sons: for, if all my sons are inti-
tuled to their freedoms, then my eldest son
most certainly is.
If it had been a question, whether all tbs
sons of a freeman were intituled ? and upon tbe
face of the thing, the man sets out only that bt
was the eldest son, he would not enbrge tho
custom ; because it would have required more
Kroof : but, if he had been the yonnrat aoSi
e must hare said that til the Mus we &itit«lcl|
open a Quo Warranto.
Iiere muit 1i«te been an RVfrmciit, In i
ilH[uai'e villi our cane. Tliry litive uut
'Hivvuae cDiry of llie juuiiui-kl 'oiis of
m. If we liiU Isitl it mure euiiliiicil, \\t
bart! fnileil iijina tlie pruufi bul as tli«
us (»n» nut, >l woiilil ham 1i«i>D«iiDagb
■ «)U(lliewaxj!/iut of n frci-man.
Iwil, 1 into but one iliiui; more to trpu-
ar lorJaliiji wiib : ibe ([cotleinen uf llie
Me Inniw. ihal n previuu* n|>|i brail uii to
ivur akil jutniB it necnaaty in nrdcr la a
beinit loaile fiec i and they infer from
', that it iji nol ri^hl, hui mere favour iu
lyorandjuruiH. Ettu where a oiin ha*
M io<li>|iulal>lc ri-ilii in Ihe noil J, by
idr, he muat,|i(VMlu>:e ami prCTe hji in-
m.aod hi* madcr cenifiea iliat bv baa
■« a|)jiri-iitictiihip fBiibfully ; yet even
nac, auronbrit; Ui tbeni, tlie mayiiraHyB
iurnia, Ueiiltviiit'ii. are you aalialieilf
tury are, ihry a<<niii birn.
, my liinl, it do<i> not at all f'nilotv, ihnt,
« tnrir opiuiiin ia to W l4ik«ii us lo tlie
■Mill, ibal Ili>-retiir« lbe\ bHVc a rivbt 10
■a a]))irfii)i('e, »lrt haa by HcrTitiidi' ac-
■ riKhl tu his li-ceilcin ; but only wbr-
hsy aball admit bitu at be itnics bis
lord, havinjC IrouhM your birdabip eo
I will b«i; leate oiilv to itay one wotil
HtOtbetiiieufOi. 8iJ.
ij> olyecl tu ut, iIihI ue laid it u partof
HMp, that Ili« eldest son ia loltcad-
Ml payiuK a reaionable Gne, and that
■• MU tu b« a due ceiUin. B'll I sub-
(ft ynut lunl>hi(i, that Oi.Bd. is a rea-
* fin« i ihtauin i> reasuuahle; and that
nataut iiaymrai of it upon every admia-
<M evidence what ia a reawnahle fine :
tvly un ihiiae inoianrea we haie read.
At i* tb* rcagnnable liiii! ; and they are
■I only to viarraut that tliere is a rea-
B fine to be taken; and that Iberefore
I hM wrunif lo aayint;> we bave a rii^bt
paying a reawnaW tine. If we had
to bate been upon a fine certain, tbey
lia*a otgeuted it tu us, and they n'ould
tiewn, Ibal at one time api^ie uf wine was
M ; and at aiiotber iiiiut 3IM. waa llie
•nd iberefare il would bate barn dan-
I to ba*e laid G>. &d. ID U> a cerlain fine.
J UardKieke. You have nhened no eti-
, Hr. Strau)^, lliat it has ever hetu ia-
Strimct. They bave talceo 6t. M. al-
a|Ma ibe adoiikiioit 'if lona.
it Uvdatckt. Uueut'thei
A.D. ITM. [Oil
cialty as they bare not sbewp who ii intitulcil
to a fi'eedim wiihiu Ibis tiiirnii^b.
Iiord HardieUke. It will he |>rn])er to CDn-
slilcr, liow much unhis nu^bt lo l>e left to Um
ju:y. Thill mucb is laui, and tbat Uiey muR
enquire of-
Firat, Wbether it aj-ppar* frnm Ihceridtvcr,
tbat ihere tg any cuslum within the luiriius^
that (lie eldest sun of a freenisn, bom after tM;^
admiaaion and swearing of his f.ither, has ftm
tltfhtf I think ibeworita'iu respect ihereofa
answerail ; ihi; confining it ■ in respect thereof*-^
quail ficationa, lliai of bo-*r
IS sot.
Siraage. That, oiy lunl, is a reaaonable
Ukd no certain sum. That in a churcb-
nt > rcaaunaltte line at one time, wliicli
W nair i and the eorporation ibink that
«w ia not more than Ci. Sd. was for-
lord, we ihorcf'ire submit it lo your
ip, Ui>oii the. ciri:iiniKtanc«s of this raie,
t: liiUy iirwrtd oui iwoe; e*pe<
II.
tbey have proied the ri^hl for all ihe si
Kor, as Sir Thomas Abney iuaisted, i
man liaa a right of utmmon, and lays il
abeep, and prove* he has ■ right fur sheep, J
iwws, and huraes too, be aball prevail; and*
that I think the same with the present ca»e;>
fur the custom's extending tu other penonstl
docs nut prove this bad, because laid more coivu T
tint^. The Jury tlici«li>re tnu^t deieriniu^>l
whether therf be any cusiom within the bo>H
roit|;b lor on eldest son tu be free.
Secondly, Then they must enquire, wbelhv
beinK burn within the lona, after bis fatberin^
was made free, be oec«asary qua) i Real ioi
the cuBiom, nr QotF For you have laid that I
tii;bt tn rise from thence. That was not ne-
ce9<<ary, hut that you have laid it so.
Thirdly, it will be nrcesiary for the jury ,' !
next to consider, if tbev belieie rekiancs tu b» J
annlher nece^ury iiaalificaiiaD f I
If thtt jury be of opinlcin, that either nffl
thaie tivu qualiScations, of being burn wilhia T
the town, or alter the I'Jtbcr was made free,*
are necwKary ; urth;ittliat point uirotU'jrai
is not nt-cuisary ■ 'hen Ihey ravil find a <
did for the plamliir.
Bui, if they suould be of opinion tbat ibB< j
two former are not essential qualilicalioiii, and* I
the last is ni'cixeary ; then tbey must find toT'-l
the defendiinla ; and iu thai case Ibat poiu^
The [loint oflayinga reasonable Que must bi
saved, if the jury find a verdict for tba plainliA
I ona, I anj doI salisGed : What Mr. At
tniney Gencnkl said, that there is great dif-i I
ference belncen a reasonable fiue and s '
vertiiin. bos weight in it.
A reasonable fine is such as the law will .
judge to be so I thegeueral usageof the kiiig^H
dom is, that it shall not eii ' '
half's rent. But what a
and who aball be the jud^e of it, the law b
tahiished no rule : And if so, iKp qu '.lio
be. Whether the jury ahould find that the rea«'1
sonablenesB is to be judged of by the proMl
portion of the snm F and tbat point lo be r«> r
aerveal for (he detenninatioD of the Cour^ 1
Whether there be a variance from the Om j
laid iu ibt issue f
If the jury Ond for the plaintiff, Ibrre ninat J
be a rule lor the fostea to stay ; and that p( '
to h« laved, for ibe vpiniMi ol th« Court.
SN
0 years
oablu fi
915] 10 GEORGE II.
Mr. Marsh, In layiDi; the evidence before
the Court, my lord, their own witnesses said,
that tburtcen 3'car8 ago there was a fine of 20^.
paid.
Alt, Gen, There is but one instance, and
that was in 1730.
Mr. Strange, We take it, Mr. Attorney,
upon your own witnesses evidence.
Lord Hardwicke, He did not say how many
instances.
Alt. Gen, My lord, he said one instance,
and no more.
Lord Uardnicke, The books ongbt to be look-
ed over for this purpose. I apprehend you would
have shewn instances where there had been a
variance of the fine. Call that witness agrain :
It was Thomas Caswell. — Mr. Caswell, yon
mentioned the fine now taken to be 20«.
Caswell. Yes, my lord.
Lord Hardwicke. How many instances do
you know of 20s. taken for the fine ?
Caswell. But one, my lord ; it is Air. Hall.
Mr. Strange. Why did you say, that for
about fourteen years 20<. had been taken ?
Caswell. I said, for about nine or ten years
20s. had been taken ; but it was always 6f . 8^.
besides.
Mr. Strange, You are disfranchised, are you
tkOi^—CaswelL Yes.
Mr. Strange, Were you not a little while
ago? — Caswell. Yes.
Lord Hardwicke, I will not have another
examination of the witnesses.
Mr. Strange. My lord, I only asked him
what they asked me.
Att. Gen What was that ?
3Ir. Strange. Nothing at all.
Mr. Marsh. What do you know of the others
who were admitted ? What did they pay ?
Lord Hardwicke. Gentlemen of the jury,
This is a writ of Mandamus, brought by the
plaintilf Henry Moure to require the defend-
ants, the mayor, jurats and commonalty of the
town and port of Hastings, to admit him into
the place and office of one of the freemen of
that town : And the writ sets forth, that the
plaintiff is the eldest son of a freeman, born
within the town after the admission and swear-
ing of his father ; and has a right, in respect
thereof, and also upon paying a reasonable
fine, to be admitted a freeman of the town.
And, gentlemen, the matter comes to this
issue, whether time out of mind there has been
a custom, that every person, being the eldest
sonof a freeman, burn within the town, after
the admission and swearing of his father into
the place and ofiicc of one of the freemen of
the said town anil port, has a right, in ref>pect
thereof, and also upon paying a reasonable
line, to be admitted into the place and office of
one of the freemen of the said town and port ?
That, gentlemen, is the issue you are to try ;
and you have, no doubt, observed on what
points this question turns.
It appears, that Hastings is one of the Cinque
Ports, and it is besides a corporation.
Gentlemen, the poiat insisted on by the
plaintiff*! counsel, and tb« first Cbiog produced
Case of Henri/ Moored
[916
to be considered by you, is a book consisting of
various parts: one of the parta is a Custood
of the town of Hastings, translated out of Lalia
into English, — in an old hand, — of what ao-
thority is not certain.
At last it comes to this, that in the book ap-
pears to be an ancient entry of the Customal of
the five ports and their menabers, the time
whereof the memory of man is not to the ooa-
trary.
t rom what authority it comes, is not eer*
tain ; but it is an ancient book of the toim,
and kept among the records of the corpora*
tion ; and the entry is in this book. Tbers
are several other papers bound up with it;
leases, the rental of an estate, a copy of a
mortgage, and some other thingts.
But that does not take oflTfrom thecre^
of it, if it has any credit in itself; for the
towo'clerk might bind up what be thooght §t
with it.
Gentlemen, the entry relied on for the plaii-
tiflf is this :
( Concerning the making of frcemeo in the
Cinque Ports and their members :'
** The mayor and jurats, the bailiflb sad
jurats, in every town and port where there is •
mayor and a bailiff, may receiTe ami laaks
freemen three ways :
Ist, ** Per Nativitatem infra Hbertatemiosa,
si pater suus, tempore nativitatis suss, fuit liber."
By birth within their liberty, if bia father, at
the time of his birth, was a freeiuao.
Another way is by a freehold purchase.
And the third way is by buying a frteioa*
And it goes on and says, *' And it is 1a bt
observed, no man shall enjoy the freedom of
any of the ports, unless he take an oath to be
^od and faithful, to the end of his life, to the
king of England and his heirs ; and to miia*
tain the liliertics of the CinqMe Ports, isd
especially of that port wheiV^ be is commonDl;
that he will be obedient to the mayor and iurttf;
that he will pay scot and lot, Sec. that be wili
not do an}' thing to the reproach of the mayor,
bailifi', and jurats where he is commorant, b«i
give notice to them."
And there were other clauses read ; and one
of them is, *< That they «Yho arc made frcf
in this form in one of the norts, shall enjov
the accustomed freedom in all the other ports."
And there is another clause, ** That no am
to be iDirJe free by redemption, shall be s4
mitted into the freedom, till be has dwelt in tki
borough by the space of one year and a day.**
These, gentlemen, are the entries rtiUed oa
by the plaintiff. Af\er reading; tbe^e eutri«*i
the counsel for the deif ndants objected, ihaithi*
was not a particular Customal of Hastings, ui
therefore not so conclusive. But HastingfS ia
the Mandamus is suggested to be one of tVt
fiwe ports.
Gentlemen, tbey hare given eTidence-of tkiH
different si»ecie8 of persons admitted under U*
nght.
The first is, where persons were tdmitliJ
as eldest sons of freemen, born witbia thf
917]
upon a Quo Warranto,
A. D. 17S6.
[918
borough, and after tbe swearing and admissioD
•ftheiather.
Tbe next is, where the adioissiou has been
of eldest sons, born nitbin tbe borough ; but it
does not appear wbeilier before or after tbe
•doiission of the father. And,
Tbe third species, of persons who were ad-
■litted as the sons of iVeeoneu in general ; but
they have not shewn that they were bom in
tba town, ur after tbe father's freedom.
As to the first species of persons, who were
idautted as ehlesl sons of freemen, bom within
thttowu, after the admission and swearing of
tbe father; I think they read in number
defeD instances: I need not repeat tliem.
The first is Jeremiah Bryham, admitted the
ISth of James the 1st, anno 1614; the last was
Bwiamin Medhorst, tbe mh of May, 1721.
Tbe next species is of eldest suns admitted,
and mention is made in the entries that they
are eldest sons: but it is not clear, whether
they were born before or after the father's
freedom ; but it appears they were born in
the town. They are in number fourteen.
They begin the 7 th of May, 1608 ; and tbe
last instance of them is the 31st of Nov. 1678.
The tliird species is of admissions of persons,
■CDtioning tbem generally as the sons of free-
men, without distinguishing between the eldest
and other sous ; but it does not appear, whether
they were bora in the town, or after their fa-
tl^ers became free. They are in number twenty.
8o that the entries they have read are in all
forty- live, under tlie several species I have
mentioned to you.
Gentlemen, after reading these entries, to
shew that such persons have been admitted,
mentioning tbem as eldest sons, or sons, the
finejhat has been taken upon their admissions
appears to be 6s, Sd, in all they have read ;
And at tbe same time other persons were ad-
milled with tbem, -but in tlie entries notice is
DOC taken of them as sons of freemen ; and as
lo tbem, the fine is 13s. 4d.
Gentlemen, besides these entries, they have
cnllcd several living witnesses.
The first is Robert Evernden. He says, he
is sixty-six years old, and has lived in Hastings
fifty years. He says, he has heard Thomas
Moore, an old jurat, say, that the eldest sons
of freemen had a right, and that the usual fine
paid upon the admission of an eldest son is 6s,
8^ and that he has also heard John Moore,
another jurat, say the same thing. He says,
they are both dead, and that John has been
dcnd about ten or twelve years. He says no-
Ibing about the qualification of residence, or
being bora in the town after the freedom of the
btlier.
Tbe next witness they call is John Couzens.
He says, he is sixty years old, and that he al-
ways understood, and has heard several ancient
people say, that the eldest son of a freeman had
B right by hia father's charter ; and takes it,
that the father must be free before the birth of
Ike SOD. He says, he heard both Thomas and
Idm Uooce say the eldest sou had a ligh^
and never heard of an eldest son's being refused
till the plaintiflf Bleore ; and says, he hear)}
Dr. Fiat say, the eldest sou bad a right by his
fatlier's charter.
Their next witness is Drew Sbengleton.
He says, be is sixty -nine years old, has lived
fifty years in Hastings, aud speaks to the same
purpose with tlie two former wituesses ; aud
says, it has been tbe discourse twenty years
back, that freemen's eldest sons had a right.
John Boykelt is tlie next : and he says, be
is above sixty years old ; that he was born in
Hastings, 'and has lived almost all his time
there ; that about forty years ago he went into
tbe court-hall, and asked to be made free as a
favour; but the mayor was against it ; and
then the town^derk asked, if hb father was a
freeman ; the mayor said, No ; and Waller re*
plied. Then you may do as you think fit ; to
which tbe mayor answers, I will not give my
consent to make a dissenter free for 40/. He
says, one (Jedhurst, the only son of a freeman,
demanded his freedom about fifteen years ago,
and was refused.
Joan White says, she is 62 years old ; has
heard her father say, the eldest son of a free-
man had a right.
Anne Sargent says, she is 63 years old ; that
she has heard John Stevens, who was several
times mayor of Hastings, say, that it belonged
to the eldest sons of freemen to be free.
Susannah Medhurst is the next witness. She
says, she is 66 years old ; that her former hus-
band was mayor of Hastings, and is dead ; aud
that she has heard him often say, tbe eldest
son had a right, and that they could not deny
him ; and says, that at that time it was gene-
rallv g^nted to eldest sous.
Gentlemen, tbe last witness for the plaintiiT
is Thomas Colebrand. He says, be is 80 years
old ; that when he lived there 60 years ago, it
was tlie usage, that eldest sons of freemen had
a right ; that old Waller the town -clerk, T. Lo*
veil, and T. Itainolds, told him so ; and that he
has heard the mayor and jurats say so several
times. He says, that about 60 years ago, one
Medhurst, who was the eldest son of a free-
man, came and <Iemanded his freedom ; and
Lovell the mayor told him, it was an ancient
right, that the eldest son of a freeman should
be made free; and that afterwards bo saw
Medhurst among the freemen at an election,
and vote for members of parliament. Gentle-
men, it ap|>ears upon the admission of this
Medhurst, which they have also read to you,
that he paid a fine of 6s. Hd, And this, gen-
tlemen, is the whole of the plaintilT's evidence.
For the defendants, tbe gentlemen of the
other side insist, there is no right at all to
freetloms in this borough ; but that all admis-
sions depend upon tbe will and pleasure of the
mayor and jurats ; that they may admit or re-
fuse a stranger or a son, just as tbev please :
and they insist, that, if there be such a right,
that it is restrained by these two qualificationr^
of being bora in the town, and after the swear^
log and admission of the father*
919]
10 GEORGE II.
Case of Henri/ Moore^
[920
And another qualification insisted on by the
defendants is, that he should be resiunt within
the boroonrh.
Gentlemen, the matter of law which will
arise, if youfare of opinion that there is such a
custom, will be, whether the fine l)e a reason-
able fine, as the plaintiff has laid it, or whether
this is a certain fine of 6« 8^.
Crentlemen, the first evidence that has been
produced for the defendants is an old book, in
which there are entries of an old Customal, and
a by-law, dated the ISth of April, the 15th of
i|ueen Elizabeth; by which it is decreed,
** That, if any freeman, now or ot any time
hereafler an inhabitant of this town, shall d€^•
part or dwell out of the town by the space of a
year and a day, lie or they, so dwellinsf out of
the town, shall lose his or their freedom for
>•
ever.
I own, I do not know so extraordinary a
custom any where : for a man to hare a ri«;ht
to be admitted a freeman, who was notresideNt;
and yet the corfHiration could disfranchise a
man fur non-residence.
fidt this by-law will not he of mnch weiiSj^lit
one way or other. It only shews the act of the
corporation to disfranchise any person that goes
out of the borough.
They have also produced for the defendants
another book, in which, they say, ii« contained
the usage of Hastings time out of mind ; and
they have read out of it an entry in old French,
the puqyort of which is, *' That if a foreigner
resides in Hastings for a jear and a day, he
may come bePore the baililf and jurats, and be
admitted to the freedom upon taking an oath."
The witness, who read this, swore there was
DO other evidence in the book I'tiluting to the
making of freemen.
They read this, to shew that there is no
right of freedom at all in this borough, if a
stranger, who has lived in the town a year and
a day, may come before the bailiff and jurats,
and thev may udmit him upon taking an oath.
Gentlemen, the next evidence I he defendants
have produced is from entries of the admission
of sons of freemen, wilhunt mentioning that
they were either eldest or vounger soqs ; and
the plaintiff admits many of these entries ; and
they only shew, that the fact in, that other
sons, as well as eldest sons, have been admitted
foi a fineof 6f . Qd,
The next evidence is from living witnesses :
and the first witLes>« thev have called is Henry
Carlton. He says, lie is 8i) years of age, was
born within a mile of H.isii' gs, and from 15
years old has livetl there. He has been at se-
▼eral meetings o* the mayor and juiats, and
bas known several honorary freemen made,
(members of parliament, and captains of.ships)
who did not reside ; and \ ot he says, he never
heard of any who do not live there, that had a
right to demand their fireedoms ; and persons
Who have lived there, and b(>eii sons of free-
men, have been refuseil, and has known in-
■tancea. He saj-s, he never looked upon it
thai any peraoa bad a right| luJeM acoordiag
to the pleasure of the mayor and jarats. He
sa^s, one Evemden, who was an eldest son, ap-
plied to the mayor and jurats to be made five,
and was refused ; and that this was about S5
years ago. He says, he has been a jurat from
1701 ; and tells you, that the common wav of
making free is, for a man, if he be an eldest
son, to apply to the mayor and jurats, andaik
the favour of them to be made free ; and if thty
consent, he comes to the court, and aakslt
again ; and if any difference arises, they pat it
to the vote ; and this, he says, is the method
of proceeding in the case of admitting freenies*t
eldest sons. He says, he was the eldest son of
a freeman, not born in the town ; that he sn
admitted, and paid but Gs. Sd, Therefore thii
is not to be applied only to the right of tldot
sons bom within the borough, he says, that se-
veral such have been admitted, but not npoB
tiie foot of right.
Their next wimesa is Robert Barthokineiry
ag^d 82. He says, he was made free by the
favour of the mayor and jurats ; and that, » bit
opinion, nohody hut those whom the mayor
and jurats please have a right. He wasasked,
whether he did not tell Mr. Broadway aadMr.
Dodson, that he rcmemlNirrd the time particu-
larly well, when the eldest sons of freeawB
were admitted without any dispute f And be
savs, He never'told them so.
*Mark Hayley is the next. IJe is 76 ycvf
of age, and has lived all his time in Hastiajii,
and has been a jurat six or seven yaars. He
says, there is no su<:h thing as demanding a
freedom by right, and that the eUlest son of a
freeman has no more right than any body eke.
Their next witness is Thomas Caswell. He
says, he has been a freeman ever since the yetr
1716 ; that he is the eldest son of a freeinao,
and applied to the mayor and jurats for tlierr
food -will to make him free ; and knows oo
ifference between the admission of an ekle^
son and another, but paying half the fine. He
says, he never knew any persons made free bat
who were resident in town, nor upon a free-
hold ; and that it is entirely in the pleasure of
the mayor and jurats (o make free. He savS|
when he was admitted, the fine wasfis. Ihf.fitit
since they have taken 20f. But being caiN
on to name instances, he says, he knows but
of one instanrc.
William Bourne is the next : and he saysi
he has been a freeman, but never a jurat; that
be has known the town 58 years ; and that tbe
way to be admitted is to get the good-will of
the mayor and jurats. He says, he is tbe
eldest son of a freeman, but knows of no right,
and that he requested it as a favour ; and be-
fore they admitted him, they considered of it
two or three court days : anil be says, that do
non-resiants can be admitted.
This, gentlemen, is the whole of tbe defto-
daiits' evidences.
By way ot reply, the plaintiff has calM twt
witnesses to contradict what Robert Bartbslo*
mew has sworn.
Mr.Broadirsjiithefint: mdhanyiilM
99T3 upon * Quo Warranto.
he (w in compiny nilh Barlholomen' about
l«ru years iKo. M ilie Blue Anchor in Hiut-
ifip 1 wbm be loJiI liim. thul llie eMe«1 Btns uf
ll^neii hod an umloublril rigbl. •nil ibat he
WM aJmiltcil U|Hin ihnl ritjbt, Ihougb lie bail
brlore (Ire lined it. by rcMOU orilietuies.
Mr. Doiliou wa< bIw) prcKui, auil br cays
lfa« Mtne.
Vpnn ibli Banholampw wu conrroiitpri with
Dixtioii aiiil Bruadway : and he »id (hat be
<tai not n-iih ibrm di socb a ntuce, and tbal
■btre » n'> such sipi aa lliu ItbicAnchor at
Banlingfi, He deuirJ he t«id the rides) B"nhail
a ritflii ; bulowua be said, he iliuu^ht they
aine to (iry into the secrela ol the coriwratian.
' Upon ihu ttidence, genllemeo, it will be
pnper I'ur yuu lu cvnsid^r,
Fml, \V)>nber yuu believe there
ti'e riKbl in this bciinu^b for an ebl<
lr«r ? A»to tbrnalil that has bera Betu|ifarllie
dcfeodanln. Thai all is ai the will and {ileaiure
«f (Iw mayor atid jurats, and thit there ii no
li^laiall tnhelVee; it is aui-h an extraordinary
•nUuin ai I banlly erer beard uf, and know no
■och innancc any where. Some right ibere
moM be, alihuu^h the rnDKtBlralci may hnre
0 Ibeii
TberelorB the
yon believe Ibere ii
be free?
tun at read.
I. 'Thii
1 be sura, is some cvi-
I CDDclusiTe ; aait it is the Cui-
il ofihe live porta ingCDeraJ, and there are
iMa customa in each port.
. Am) here ia oDe melbnd laid down nf an ad-
BSiaMna of freemen iu right uf a purchase, and
lha(, they shew yoa, has never been coinidied
Willi.
Bui they hats read many inclancea uf per-
■HM who were admitted u|Hin the Grat right;
thirtv-fite they have read who were admitted
•aattleslEonR, or sons; ofihe first iiwclef, they
Trail eteteti in nuinber; and you must take it
iDigrther with what the living witniaaea tell
yoa, who all aay. that they have taken the
cealoiD to be so, that tlie eldeal son has a riybt.
fVbal Doykelt iwori: is very material, that,
whm he applied to bo admilled, Waller the
tmro-ulerkaaked, if hii father ko* afrcrainnf
The mayor said. No ; ta which Waller rvplied,
Titea do what you please,
-Ontlemcn.for ilieiletendanli, the wiinettet
fcavc iwum, Ibat they know of no right to ti-ea-
Bta ibla btiruugb, bnt at thepleoiure of the
eaad jurala; and that during Iheirtime,
Hugh parlicutar menlinn is made In (be
■ Ihallliey areaona, in teapect of the dif-
eenf the line, and that \h«y (readmitted
fttr pafinu St. tttf, (bey tell vou it is not at ail
■Mt^ilal bciu); the uin of a Ireemao.
GsDtlemen, io the next place you will con-
aider, if you believe there ii any ri(;hl for the
clileai wmi* of freemen, tiien whether it be ne-
rewarr Uial he be burn in the inwu, and after
il^fctim waantade free; because the plain-
u made it ncoMaary for him to prove that
Itan Uric aller the admiMiun of his
A. D. 1736. [922
t'aiher.by Utyineil ■ inrespscltherenf.* Aadaa
to thai, theancientCuEtuinnl says, "UnonuMJo,
jiitr nutivilalem intra libertatem suara, si paler
anus, tempore nativilatif bus, fuit libtr ;"
That every body has a right by birth williin
llieir liberty, it his father at tlie time of liia
birlh was a freeman. This the ancient Cua-
but this is not c
'I'lierttbre, gentlemen, ^ou willconsider it nitb
the evidence ol' the living wiiiiesaes, and aona
of Ihein have made that a neceuary qnaliftca'
liuu. One of tbem said, llal the falW must be
free beliire ihe birth of his son ; and another
aaid. it made no differenci', whether bnm be-
fore omOcr; Biil none of (hem said po^-iiively,
that be niUBi be barn witliiu the lihpriy. alter
the admifiiion and swearing of bis father.
Therefore ynu will comidrr, whether these two
quail I i cations are proved e«»eotial lu the right
(o be mode free.
In the next place, it will be proper lo con-
sider, that the Cusiomal supjiuiies that no man
has a right, unless he be resionl ; and it lend*
lo mlatge the freedom of tlie borough, to let
in person* not re>i'lenl: But very little potiliva
irviilenee hsabeeui^iveDorthat*
The defend Bills' witnesses have sworn po»i>
lively, that the mayor and jurala can Bitniil
none bnl resianis; and yet, that they raay
admit honorary freemen who are uon-reaidenl :
Though tlie ancient Ciistiinial bn.i an express
clause in it, which suppuses, lliat, io order In
be free, a man roust be resident. They swear
to pay scot and lot, and to maintain the liber-
ties ot'iheGve ports, and paiticulsrly ofthenort
where they ate cominorant; which impliea,
lliat every freeman should be commorani.
And the Giiunael fur the defendants hat« men-
lioned, that every freemnn is to take an oath io
msioiain the rights nf iha five ports, aud es-
pecially of that port where be is commorani.
You will consider therefo>e,gentleinea, whe-
ther this Imports a* a necessary qualiticMtMt,
that in enter to he free, a maa must ho rMidsnt >
The counsel for the plainlifl^ did not ask tha
witnesses as to this point of resldeove.
Tlie witnesses for the dL-fendants all swore,
they took It tn be so ; bul yet that boDomry
freemen, who were noi resldvnl, an jht be made
free.
It will he proper for you therefore, geutle-
sider.
e. that
Fii-si, if ymi believe, on this erid
there is no right in iheaon of any It
demand bit frecdnta of the mayor and jurats,
bul that all detiends on their pW
You win cnnsider, whither the twanMlifl-
-catioiie. of bfioi; born in the borough, after Ihe
freedomof Ihe father, ore necessary, or noFi
If yon believe they are not net^ssary ; but
thnt whether h« be bnm in nr out of iha
homuqii, nr belhre or afler he waa made free,
makes no dift'erence ; iu tiiat one joa niM
find for the defcndanto.
983] 10 GEORCE II.
Bat if yon bdiere ■ right in th« MM of frea-
laea ; and ihat belog bom in tbe boruugb, and
after the Tither'a lieedom an) euentisl ;
Then you will vaiwider the maUer oT rft>
Aadif you tielieve minnca DOt neceuarj,
then you niuit Bad a rerdict for tbe plaintifi'.
But, on the other band, if you berievr being
bora in the boruugh, and atler tbe father*! free-
dom, ara not neccMiary ; or, if necEoary, tb*l
it It equally oeceaary that the penouBahould
berendent; then you muat find a verdict for
the defenduit*.
Tcrdict for the Plaintiff.
Foreman. We find, that tbe e1de*t ton of a
ftveman, born within ibeboroogh, alter hi* fa-
ther'a freedom, baa a right.
Trial of Captain Purteout, [9S4
Lord Hardaitkt. What do yoo find M I*
Foreman. Hy lord, tre find reaideoee not De>
oeaaary; andlhat the FUMt.son, bom wititin
tbcborougb, afEer his father's freedom, bna
right upon payinii a cuttninar* fine.
Lord Uariaicke. What do you find tbt
FoTtman. We fiiHJ the fine to be e«. 8i. aad
that that in reaaoDuble.
Lord Hardnicke. That point of the reawi.
able fine mutt be M*ed for the optoiooof tba
Court ; and let the Pueteaatay.
N. B. The Special Verdict was aflerwH^
tolemnly argued, and detemiioed by Ibe Coait
in Amur of the phuutiff Mooic
498. Proceedings in tbe Trial of Captain John Porteous, for
Murder.* Published by Order of the House of Lords ;
10 George II. a. d. 1756,
CuBU JumcUBix S. D. N. Regti, Tenta in
NoTD Seiciomi Dorao Bui^i de Edin-
burgo, Quinto Die Mensis Julii, MillesBi-
mo teptiDgeDteaimo trigetirao sexlo, per
HonorabUes Viros, Andream Flrtcher de
Milton, Justiciarium Clprlcum, Domiuum
Gualterum Pringle de Newull, et Gilber-
tiim Elliot dc nilDla, ConnniEaionarioii
Junticiariie dictj S. D. N. Regis.
Curia legittime alErmata.
John PORTEOUS, lately one of the cap-
tain lieutenaots of the city guard ofEdiDburgh,
present prisoner in the Tolboolh of Edinburgh,
pannel. indicted and accused at the initauce
* As to the pari ia men tary proceedings bar-
ing relation to tliia Case, KB New Pari. Hist.
*oT. 9, pp. 1S81, ct tt'i- Tol. 10, pp. 137, cl teg.
147, el leg.
Mr. Burnett (Treatise on tbe Criminal Law
ef Scotland, chap. 1, p. 71, tit. Homicide by
■oldiers in discharge of their duty,) after con-
udering sereral cases of homicide CDmniitted
by soldiers, in which tie soldiers appeared to
hare acted in sell' defence, orin defence of guodt
regularly seized, or in ussislance of revenue ut-
ficcn, or being ou duly in obedience to orders,
cites the following observation nf lord Rnysloo,
with respect to »ome of those cases : "Thisde-
fenre," f meanini,' that the soldiers acted hy or-
aera of their officers) ■' was likpwise pleaded
for some soldiers, who were tried for shooting
two penons of a mob, who attacked those sol-
dins, but then tf ai no explicii iuteiloenior on
of Duncan Forbes, esq. his majcaty'a Advaetl
for his highness interest for the crimes of Bor-
der and sIsaghlcT, and olhcn, as is mora fvUy
mentioned in the indicleniedt raised agaiaa
him IhereanenI, Setting forth, Tliat wbeia,
by the law of God, tbe common law, the mu-
nicipal law and practice of this kingdom, sail
the laws of all other well-goremed realnn,
murder and slaughter, maiming and woundiae
with mortal wcaiioos, any of the subjects of
sucli realms, ana the ordering, commsnillDt,
and causing any band, or nninber ot' men,. arm-
ed with firelocks, and other mortal weapons, to
fall upon, vcounil, murder ami destroy nombets
of his majesty's subjects, innocently and law-
fully assernliled, by tiring sharp shut amengit
tlieiu, whereby multiiudes are, or may be en-
dangered, and many men, women and innocent
children are, or may be killed or wounded, «ilb-
Uiat point ; jiriucJpally, because the Court wu
out inclined to give loo much eocouragemeut
to soldiers, even though acting hy orders; nu-
lilary execution being an ezlraordinary re-
medy, and not to be used but in casea «f necea-
aity.*'
Mr. Burnett then precceils as follows: "Tliis
principle seems to hove ruled in the noted Casa
of ParteDU8(July, ITSQ,) which happened a few
soldiers, and the notoriety of the avowed pur-
pose which bronght the greater part of tbe mob
there, this principle ougbtnot to naTe had eKcl
in such a case, and certainly would not now be
followed, were a similar case to occur."
He then abridgea tbe argumnia maiulaiiMi
on the part nf the prosecutor and oa thet nftbn
punel, ud Uwn mild tbe inlulBcaCar rf idt;
925]
Jor Murder.
A. D. 17S6.
\jm
out any just eause or occasion, and without
lawful warrant, more especially when com-
mitteil in the public streets of a city, by a per-
ton lawfully commissioned by the magistrals
thereof, to command such baud of armed men
for the preserration of peace and order, and for
the defence of the inhabitants, and others re-
torting thereto, are crimes of a htp^h nature,
and aeirerely punishable : yet true it is, and of
rerity, that he the said John Porteous had pre-
•umed to committ, and was guilty and acces-
sary, or art or part, of all and eirery, or one or
ether of the foresaid crimes aggravated as albre-
faid : In so far as, upon the 14th day of Aprile
last, or one or other of the days^uf the said
nooth, when the deceast Andrew Wilson, sen-
tenced to be hanged to death by the high Court
of Jnsiiciarv, was to be executed at the Grass-
market of the city of Edinburgh, he being at
that time one of *the captain lieutenants of the
town guard of the said city, lawfully commis-
tioneoby the magistrats and town council there-
Qf ; and in the ordinary course of rotation with
the other officers of the said guard, being order-
ed to attend at the said execution to preserre
the peace, and support the executioner in the
▼ancy ; upon w hich he obsenres as follows : <* No-
thing is here said of the conduct of the luob, the
true and indeed only ground of justification on
the part of Porteous ; but his dei'cnce is made to
rest solely on his behaviour at the time. There
wasy indeed, both in the information for the pri-
soner, and in his petition afterwards to queen
CaroliDe, too much said on his supposed con-
duct at the time (his not firing, or giving or-
ders to fire) and too little on the general argu-
ment in justification, arising from the conduct
of the mob, and the consequent plea of <luty on
the part of the soldiers. It is plain from the
interlocutor of relevancy, and still more from
the sentence following on the verdict, (which
last expressly found, that the pannel and his
goard were attacked and beat, and several of
the soldiers bruised and wounded) that the
Court were influenced by the circumstance, of
Porteous*s conduct at the time betraying symp-
toms rather of a revengeful an<l malicious pur-
pose, than shewing that he acted from a sense
of duty.*'
He adds, that '* in the Case of Sullivan and
Black, two soldiers, tried for murder before lord
Atichinleck at Invcrary, in Sept 1763, who had
been assisting revenue officers, the interlocutor
•eemingly narrowed the prisoners' defence,
since it finds the murder relevant ; but ' allows
* the prisoners to prove that the same was com-
* mitted in the just and necessary defence of
' their own lives, and when thev were in the
' execution of their duty, and all facts and cir-
' eumstances tending to their exculpation,* as
If the * periculum viioe' was deemed necessary
to excuipAte in such a case. The jury found
Bot gmilty ; the fact being, that a rescue was
attcnpted by persons armed ; and the soldiers
int oreil over their heads to intimidate, before
IbcyCradJiltiiiuUely.''
discharge of his doty, having under his com-
mand a detachment of about seventy men, he
did then attend in the aaid Grass-market ac-
cordingly, and after the aaid Andrew Wilson
had hong upon the gallows, erected for his exe-
cution, until he was dead, at least for a consi-
derable time, and so long as there was ground
to conclude he waa dead, he the aaid John
Porteous, shaking off all fear of God, and re-
spect to his majesty's laws, and conceiving a
most wicked and malicious purpose of destroy-
ing, wounding and maiming numbers of his
majesty's subjects, the inhabitants of tlie said
city of'^ Edinburgh, and others there assembled
at the said execution, without any just causo
or necessary occasion, ordered the said detacb-
ment of the goard under his command to fire
upon the people so assembled at the said exe-
cution ; and the men, at least severals of them
having fired, as it seems he apprehended, over
the heads of the multitude, so as to avoid doing
them harm, he with threats and imprecations^
repeated his commands to fire, callmg out to
them to level their pieces, and be damned, or
words to that nurmiae ; and at or about the
same time, he levelled the firelock that was in
his own band, taking aim at Charles Husband,
servant to Paul Husband, confectioner in the
Abbay of Holyrood-house, and most wickedly
and murderously fired at him, whereupon ho
immediately dropped to the ground, having re-
ceived a wound oy a bulletor large drop of lead
on the left side of his head, which pierced into
his brain, and another large wound likewise by
a bullet.or large drop of loul on the left aide of
his neck, and a thiro woimd in his body, and a
fourth wound in his left hand, at least a mortal
wound, or wounds, whereof he died in some
short space thereafter ; at least, he did so le^el
his piece, and appeared to take his aim at some
one of the innocent multitude who happened to
stand directly over agrainst him, and he did fire,
and upon his so firing, the said Charlea Hus-
band, at least one or other of the persona parti-
cularly after-mentioned, or more of them, did
immediately drop to the ground, having re-
ceived a mortal wound or wounds, whereof they
soon aAer died. And by his said example and
command, severals of the said guard, to the
number of twenty, lessor more, did at the same
time with him, or soon after him, fire u|)on the
innocent multitude, whereby all, or one or more
of thefol lowing persons received mortal wounds,
whereof they soon after died, viz. Archibald
Ballantyne, son to John BalIantyne,yodnger,
dyster in Dalkeith, received several wounds,
with bullets or large drops of lead, which
pierced into his body, at least a mortal wound
or wounds in Ihs head or bo«ly, whereof he died
a few days thereafter ; and John Aoderson, son
to George Anderson in Craighead, drover, re-
ceived a wound in the head with a ballet or large
drop of lead, at least a mortal wound or wounds
in his head or body, so that he died in few
houra thereafter; and the following persona
were grievously maimed, hurt, and wounded,
to the great danger of their lives, vis. Margaret
D27J 10 GEORGE IL
.Arthur thu Airih, i««ul«titer in tfao Cumon. -
gate, neu the Water-gule ibereof, Jean Peal,
•nrtDt tn Jimei M'Dowal, meTchiDt in Edin-
htfgh, Darid Wallicp, journayman wrighl in '■
EJiDbureh, JamgiPh"Lli[iUteiierTantto
Iduiler, esq, reitdrnter in ihe Cannon-KaUi
UavidKiJ(llayb.rinEdin>iiir|!li, Patrick t^^-
ing apiireatiue tn DaTid Mitchel jeweller in
Kdinbureh, JaniM Lyie, anJ AIntaDder Wal-
lace, both wTTiinls tn James Wri^Ut olajiiDaLer
in Eilinttnniti, John Miller uylorinEilioborgb,
Da*td Ogikie writer in EdiDburgli, and Jamea
NiTan late aervaut lo William Sellan writer io
Edinburgh, reaidenter in the Fottfir-raw: at
lea^l, tlie laid perMDi were lO killed, wounded
and tnaiiued, by the 6ritw in manner, and by
tliE direction, aa albraaid, aiKl hy the aeaond
firinir aiDemwntiimed ; for oM MDtental with
the MiWitici Ihna committed, nftar he bad
with the asid company «r detachment of the
city gaard marched towarda, or into the phwe
or rtrect called the WcM-bow, he, witbont juat
catNeorooeaiioci, af[ain ordered the men under
bia command, to race aboni and fire upon the
people, and at or about the aame time, he fired
a miiaket or flrelnck that waa in bis own hand,
ba* iog either reloaded, or eauied to bereltMded
hia own piece, or takenanatherout of tbehaod
of one of the guard ; and aereraU uf the aaid
guard did, upon ttiat aecond example and com-
mand of hia, fire upon the multitiide, wberdiy
AieunderH'Neilaon to Edward H>Neil ia-
dweller in U^irton^ball, recnied a shot in the
bead with a bullet or lead drop, which pierced
into his brain, at leaata mortal wound or woutidi
in his bead or body, so that hedied thereof in a
few days therealter; aod Margaret Gmdon
armnt to William Ogilvie lay lor, in Saint Itlary
Wind in Edinburgh, received a ivound io ib'c
heail aliuTe Ihe left eye, vilh a build Or largfe
drop uf lead, which pierced into her bralo, at
leant a murtul woun'l or wounds in her liuad or
body, so that she died thereof in a short space
thcrealUr; and Henry GrahameUvlor inCan-
tmnirale received a wound in the hi'ad, with a
bullet or lari(e drop of lead, which pierced into
his brain, at least a mortal wound or wounda
in his head or body, of which he died in a few
faoura thereafter : at least, by this, and the
other firings by him, and hy his order anil
example above-niFnlioned,Bllor one or more of
tlie perronK particularly obnvu recited, as havinif
been killcEl, received uiurtal wounilr, of which
they soon oiler died, and all or one or move uf
the persona above recited, to have been woimd-
cd. Here grievously maimed, hurt and H'Oiind(.iI,
lo the great danger of tiieir lives : at least, ut
the lime and place aforsaid the saiil persuut
above-named and nienlioued to have been rc-
sprclively killed aud wounded, were all, or one
or more uf them, wickedly aii'1 malicioustv
slaughtered, murdered and wounded, hy tvouiiils
aeiBTBlly ^ivan tliemhy mortal weapons: and
he was guilty, art and part, of the slaughter,
murder and wounding' of all, or one or more of
tbem: all which, or any part thereof being
IboiHl proran by the rerdict of an asuai-, in
Trial of Captain Porleout, [988
preaence of '.bo Inrda justice general, justice
clerk, aud commissiDoers of jusliciary,heaui[hl
to be most exemplarly pooiahed with the paioi
of law, to the terror oj'others to commit the like
ioming. Sic Subarribilar,
Cu. AaaiuiiE, A>D.
I Forbes, pac|. his majm-
^harlea Erakine, bia ma-
Mr. Hugh Hurray, KJoDynmont; sir Jamtt
ElphioBtoun.
Prclacuton in Deftnce—Tdr. Jamex Oii-
hame,jun.; Mr. Henry Home; Hr.Aleaaads
Lockhart ; Mr. Jamea L«aaley ; Mr. JaoM
Hulburn ; adrocatei.
Tbe libel being openly read, aad debalesnl
eoce, in preaeiiceorthejudgea,pannel nndjoij,
the lunls oidaioed both partiea to give in tbtir
informationa la tbe clerk of court, in urdcrtobe
reimiied, aud the pursuers to sire in tbein
U[ainst Friday next at six o'clock at night, ud
the prolocutors for the pannel lo give in tbein
against Tuesday thereafter, and continued tbs
cause till Friday tlie 16th Instant, and ordera^
aiaiaara and witnesses then to attaid, and ihs
pannel to be carried hade to ptisoa.
Jttly 13, 1796.
Ikfoshation for his Majeaty's AdrocMe Ibr Ui
Uighneas's ioteieM,
John PoRTEot;s, late Cariuin LientmantoTlbe
City Guard of Edinburgh, FanucI,
Tbe jiannel is charged by the indictmnt,
wilh murdering, slaughtering, mairoing sod
wounding, divers of bis majesty's subjects, hj
firing witii his oun lian'l, aud causing and itr-
ilering a liniid of armed lucn under his cviu-
mand, lo rue u|)on a multiludeof innocent pen-
pie, assembled tu sec an execution in the GraM-
markotof the city of Edinburgh, wiilioui any
Just cause or provocalioo, contrary not only lo
the laws of God and nature, ami ta ike gssd
and laudable lawa uf this and all ciher well-
governed realms, but alao contrary lo ihe H-
press duty of his ofHce, who Has one of tbe
L-otnmaniU'rs of the city guard, intended to pit-
servo ll)e peace of the ciiv, and lo protect ihe
■uhabitants thereof from all violence ; and nhv
was on that occasion enlrusteil ivith the com-
mand ufa large dclachment of the said guard
culiou of a sentence of liie hi)ih Court of Jiicli-
ciary, and lo prevent all riots ami tumutK,
wlierchy the execution of the said seoleDcc
might he disappointed, the laws mit;ht be lis-
latcd, and the people assembled might be hint
or destroyed.
The indictment sets forth, pari icularly, That
the lime and jdacc libelled, where a great
see the esecutiun of Andrew VVilsoD, tCBtcKcd
gs9]
for Murder.
A. D. 1756.
[9S0
to be hanged by the high Court aforesaid ; the
pannel ha?ing under his command a detach-
ment of seventy armpd men of the city guard,
and having conceived a most wicked and mali-
cious purpose of destroying, maiming and
wounding, numbers of his majesty's subjects,
ike inhabitants of the said city, and others as-
sembled at said execution, without any just
cause or necessary occasion, ordered the said
detachment under his command to fire upon the
|»eople so assembled ; that the men under his
command, having probably, in his apprehen-
sion, fired over the heads of the people, he, with
threats and imprecations, repeated his com-
■nods to fire, calhng out to them to lev«i their
pieces, and be damned ; that at or about the
aame time he levelled the firelocic that was in
his own hand, taking aim at one Charles Hus-
JmimI, and fired at him, whereupon he imme-
4liately dropt to the ground, having received
iiroiuids, whereof he instantly died ; at least,
(hat he levelled his piece, seeming to take aim
al some one in the croud, and fired it; and that
npOD his firing, the said Charles Husband, or
one or other of the persons in the indictment
mentioned dropt, having received wounds by
ballets, of which they instantly died ; and that
by his commands and example, several of the
city guard under his command, fired upon tlite
ioqocent multitude, whereby the persons parti-
cularly mentioned in the indictment, were
:kiiled, maimed and wounded.
The indictment further charges, that not
contented with this barbarity, the pannel, after
he bad marched off his detachment to wanls, or
anto the place or street called the West- bow,
again orcfered the men under his command, to
face about and fire u|M>n the people, and at or
about the same time, fired a musket or firelock
that was in his own hand, haviuji; either re-
loaded, or caused tu be re-loaded the piece for-
merly fired by him, or haviog taken another
out gf Uie hand of one of the guard ; and tliat
.several of the Kaid guard did, upon that secon<l
.example and command, fire upon the multi-
tude, whereby the persons described in the in-
dictment, were killed or mortally wounded :
and tlie indictment concludes in cofiimon form,
that the pannel is guilty, or actor art and part
of the crimes aforesaid, or une or other of
them.
The charge in this indictment is so heinous,
tliat one shouUI have imu<^ined it would have
been decent in the pannel, to have made no ob-
jection to the relevancy, and to have founded
V|iun no defence for avoiding the effect of the
libel, if true, but to have contented himself with
a flat denial thereof, reposing himself upon his
innocence, if he is truly not guilty of the facts
alleged, without any other desire, hut that of
bavmg a fair examination of unbiassed wit-
nesses, to be produced by him as well as the
prosecutor, in order to discover the real cir-
curosfances of the transaction.
But bis procurators, it seems, thought it
their duty to move every objection against the
^iclcfancy of the Jybcl, and to offer every de-
VOL. XVII.
fence that their invention could suggest from a
particular rehUton of the circumstances of the
whole transaction, which they laid before the
Court upon the pannePs information, and which
they ofl^ered to prove to make good their de-
fence.
They informed the Court, therefore, on be«
half ot the pannel, That the magistrates appre-
hending, tliat some violent attempt might be
made for rescuing Wilson, the nitender sen-
tenced to l)e hangi^, had ordered the pannel
to attend the execution, with the greatest part
of the city guard, to support and protect the
executioner in the discharge of his oflice, with
directions to repel force by force ; that to make
those directions effectual, powder and ball were
by the town-treasurer delivered outof the town's
magazine to the city guard, the morning of the
execution, with directions to load their pieces :
that besides this precaution, the danger of the
rescue appeared to themafi^istratesso great, that
they desired of general Moyle, and obtained a
detachment of the regular troops, who were postp
ed near tu the place of execution, in order to sup-
|>ort the city guard if there had been occasion ;
and whose commanders were told that tlie lord
provost would give them authority to fire, if it
should prove necessary ; that the pannel with
the town guard attendetl accordingly the exe-
cution ; that when the oflender was huug op
on the gibbet, the magistrates retired from tlie
scaftbid, and I'epaired to a house over against it in
the Grass-market; that after the ofi'endcrhad
been hung up for some time, the multitude be-
came unruly, and liegan to Uing stones of great
size, and with great \io\euce, that some of tlie
guard were thereby hurt; one had his shoulder-
blade broke, others were bruised, and the tim-
ber of the drum was beat to pieces ; that the
insolence of the mob irrowing still greater, and
they pressing from all sides n|K>n tiie guard,
the panne!, who apprehended they might have
intended to carry off the criminal, who bv this
time was cut down, in order to attempt the re-
covering him to lile, found it neci*ssary for him
to keep uff the ninltitude by threats and me-
naces ; that to this end he presented his piece,
first to one quarter, and ihentoanotlier, calling;
to the people to stand otf, and threatening if
they did not, he would fire ; that nevertheless,
he neither fired himsplf, nor gave any orders to
fire, but, on the contrary, when some of the
guard, provoked by the hurts thc}' received,
had without his orders or authority, pre-
sumed to fire, whose example was fidlowed by
several others, he did all he couki to prevent
that mischief, by commanding tliem to desist,
and actually did beat down the muzxle of one
ofthemen*8 pieces, who was presenting it in
order to fire ; that finding he could not be
obeyed, he endeuvoiired to march off his men,
and prevailed wjtli several of them to follow
b'iu\ some snr.i!l way i:p the West-bow, when
again soineof ihus( men who followed him, piO-
voked by what he did not know, faced alN>utan(l
firiHl towards the Grass-market; that the first
notice he had of this firing was by hearing it.
931]
10 GEORGE II.
Trial of Captain Portevj^^
«hicli made him turn about in order to stop it ;
that at tbi^ last uiace be neither fired, nor gate
orders to lire ; that he marched as many of his
■nea as he coald i^athcsr toother back to the
riily ^uard room ; that there be prcveuted the
iDf;n's clcanin:^; theii* pieces, that the f^uiity
who fired mi((bt be distioguUhed from the in-
nrjcciit who did nni fire ; that his own piece had
not at that time been at all tired ; that conscious
of bis innocence, and that he had on this, as
well as OD etery former occasion, done his duty
%rith patience and temper, he presented him&elf
before the majrjstrates, whereas nothing was
easier for hiun than to have made his escape,
and that in their presence the firelock which
he had in his hand was piesented, and appeared
not to have been at all fired ; and that there-
fore it was impossible the lybel, as Jjbelled,
could be true.
From this, which was said to be the state of
the case, till- procurators for the pannel contend-
ed timt. Thai the lybel was insufficient, as not
flcMrribinf^ with proper accuracy thp particular
Kart of the street where the person supposed to
0 shot by the |iannel stood, and his situation
with respect to the pannel at the time, because
thereby tin* pannel was deprived of the oppor-
tunity of inukin^- hia defence, by foundio)^ it
particularly on circumstances which he might
m?ail himself of, if the position and sittiation had
been distinctly described.
To this it was and is answered, That the
lyliell is as particular as the law requires, de-
■iuribinif the street where the execution was had,
which IS all that the utmost scrupulosity could
cxjiect in sucli a case. Minute circumstances
cannot be known to the prosecutor, or certainly
discovpred but by proof upon the trial: every
circumstance of the panneVs own actings must
be known U) him ; and therefore, if from tlik
position or hitiiation in which ho was at the
time of the tirin||(, he can show that it was ini-
ptKsible he could have killed the t>erson whom
lie is chortled to have shot, describing and
proving those circumstances, he may have
advantage from them, but cannot object to
the prosecutor, that he did not minutely de-
acrilN* a situation that was not known to* him,
and which describing, perhaps erroneously,
might minister an unjust occasion to a criminal
to escape justice : wherefore this objection to
^he form of the indictment ought to be repelled.
Hut in the second place, The procurators
for the pannel, very unnecessarily, one should
lliink, if he is innocent of tiring, or ordering to
fire, and in some degree inconsistently with
that plea, alleged, that the delivering out pow-
der and ball to the city guard ; the ordering so
|rreat a detachment to attend ; the calling for
tiie regular troops to support the town guani ;
the intimation to the commander of those
Iroofw, that they should have orders to fire, in
caae of necessity ; and the direction to the pan-
nel to sumiort the execution of the sentence
against W ilsoo, and in case of a violent rescue .
or deforcement, to repel force by force, amoiint-
•d to a Aalerdor from the magistratM to fire,
[932
when it bccaire peer wry : aadtbatlhevkleBt
assault made by the mob, as albicnid, with
stones, which were to be cwiaiilffod as lethal
weapons, in order, as the panoel bcficved, t»
carry off the offender, in hopes of moterif
him to life, made it necessary to repel fbrea Vf
force: wherefore these circimasiances to lafier
the onler, and the vMlent assault of the mob n
mentioned, ought to be snstaioed and adiMtt84
to proof, as a tuial defence against the indiet-
meut, at least as circumstances lit to mitigalt
tbe punishment, and restrain it from the fcM
ordinario; since the pannel being veriaai is
liciio, and engaged in the discharge of a kwfid
piece of duty, if any excess was committed W
him, it ought not to be attended with cafiti!
punishment, but oagfat to be eorrecied ertrmtr^
dinem, according to the degree of the tsxtm.
To this it was answered. That though it wm
tnie, which is not at all upon the part of tbt
prosecutor denied, that the magistrates, opoa
just apprehensions of disorders, and an attm|rt
for a violent rescue of the criminal, who wit
sentenced to die, bad ordered powder and biS
to be distributed to the ^ard, bad increaied
their numbers, had obtained assistance frma
tbo commander of the regular troops, with u*
surance, that in case of necessity they shooM
be authorised to fire, had directed the paaod
at all hazards to support the execution, and
prevent a violent rescue, and had even toM
him, that in case of necessity he was to repel
force by force, it will not in the least follow,
that those orders could in any degree jndQf
him, except in case of necessity, except tbers
had been an attempt towards a* violent rescue,
which could not otherwise have been prevented,
and except all the proper prec:\utions for dis^i*
pating otherwise the mob, and for legitimstio^
the act of firing upon them, had been previously
made use of.
For, in the first place, no order fromaoy
civil magistrate whatever, can justify a barba-
rity so horrid, as that w liich is charged on tbt
pannel. Had the provost, and all the roagis*
ti-ates of Edinburgh been present on the spot,
and had they ordered him to fire upon the in*
uocent people, when there was no just cause for
so doing, those orders indeed might subject tbt
magistrates, as well to tbe penal conseqoeocci
that attend murder, but could not on the least
acquit him, who was not at all bound to obey
such illegal orders, and who therefore acted tl
his peril.
In the second place, it is not at all pretended,
that the pannel had any onlers expressed or
implic<l to fire, except the violence of an at-
tempt to rescue, not otherwise avoidable, made
it necessary. Had that been truly the case,
firing possibly might have been the pannel's
duty, the reading the proclamation undoubtedly
would have made it justifiable ; and this tbe ma-
gistrates knew, when they ordered aramuniliaa
to be distributed, and invited the regular troops
to their assistance : but till it became nBceasiiy,
when there was no hazard of a rcacuo, bcfim
any disorder wai sought to be ^u«lM bjtha
■913
for M<irdcr.
kgal pripuitinn of reading Uie praciomsiion,
which u iDleniled (o intimidate i-iolen. and to
••(ante Uie Innocent from iha %ii\\iy, by ^iv-
in^ iliie nuiice lu nil thoufrhilcse |ie*|>le, who
wiliiout any inaletulenue &re tnlxt itilti Ihe
■uiililudE, to se|iRrat« Irnra the ill Dipaniiip, it
«a* tbfi must cruel, u ncll as unjuiiifiahic act,
ibM faaa al tay lime been henrd of, to mabo use
•rtli«wea|KiDii titat were put In iii« liitnila of
tb« gtiard, for the security "f tbe peace and of
tpwiilc, to denroy so many inuucenla, who
Mi in any degree offended.
(Ti Ihlrdly, llinugli the pannel incnlioned
M^og' of Iloiiei, and tbe size of some
Bteiu, with some hurts receiced there-
I, yt\ the libel chargea, and lie admits
tint tbu urimiiial wai cut down before ihia
Itidldg proiocaiion preTailrd wilb any one
to Grc : bis duly Ifaen, m far as cooceroEd the
cxecutiou ufthesenleoce, was over: he alleges
iMi d(iig«r, nor can he in those clrcumslancei,
of ■ rescue, no ioTasion with fire-arms, or other
■MTlal wcupons, Gl lo deforce or detlroy a de-
lMjbiii«iil of 70 disciplined men, irilli loaded
piaceo Mid Kci'ewed bayonets : liow then can
tlic exiKcnc«, or the ordeia defend him? If his
actfaailbeciiabsoluielynecassary, same defence
migfat ba*« been founded on that necessity join-
ts trilb his orders : but wben bis allegations,
Ibot^ tbry trere true, do not point out tbe
kut necessity, and are in reality founded on
aodliw else thao the ciiskomary impertinence
M radi occMions. of dinging din and slonei
St the executioner, thou^^U the provocalino
tblrehy gtvsn might perhaps justify a choleric
Ban, Mr drubbiug any of the actors lor their
maiotuiets, ye[ lo be sure, it could not joslifie
iIm •UugbteriDg at the offender, tar lees can
MNb impertinence in a few bnys, or other Idle
mmift€, excuse the firing sharp shut upon an
MBoomt multitude, wheivliy numbers of his
■MtiaMy's sutgecta were destroyed : and tliere-
An it seems lo be beyond all Joubi, the psnnti
«a find no shelter from those otderi, or the
iitj he imagine* lay upon bim to fire \ and
ntlMt therefore slaad or fall, upon his being, or
■Mboiog Kudty of the facts charged upon him.
Tbe procutalors tbr (be pan n el codes Toured
to find an argnmcnt for him, lo a late resolution
of the Court, which suspended a seoleoce of
lb« court ut aiiutiraliy, proceeding upon an in-
Itrloqiiilor that fuund it neccasary for soldiers,
wIm bapjieanl lo kill in the execution of their
Avtj, wbcu by order alteniling cuslom-buiise
aflhieia, tujirovv, llial the killing was Dece«i<ary
iilr iha defence of iheir lires, inferring from
lU* rccalution, that the Court did not think il
■eecwarj liir ibo paunel tu prove, thai he was
id ihngcr of his life : and though all thai their
abaerralioD necewiarilv imnlirs were granted,
llwj cuuld have no brnttlt by it, becauae in
thaa c«M Ibe pannel neither does, nor can aier,
ifcat (be Uring which lie was personally guilty
of, and ordrrad, i>aa necemary for securing
u of that rrust that was cutDHiitted
nine Ibe jigblt of the
A. D. 1796. [934
Where a man has by lair weapons put ia
his hand, to be employeil, not only in defeiic*
of his life when attacked, hut in support of th*
execution of the laws, anil in dclenue of lb«
pruperty of the crown, or liberty of any sub-
jeci, he doubtless mav use those weapons, not
only when his own life is put so far in danger,
that he cannot probably escape without making
use of them, but also when there is iinminenl
danger, that be may by Tiolence be disabled to
execute his trust, without resorting to the usa
of those weapons : but when the life of tba
officer is exposed to no danger, when his duty
does not nectMtarily call upon him fur tlie exe*
culion of bis trust, or for tlie preservaiinn of
the property of Ihe crown, or the preserra-
tion of tue properly or liberty of Ihe subject, U>
make use of mortal weapons, which may de-
atroy his majesty's subjects, especially num*
bera of them, who may be innocent, it is impos-
sible, from the resolution of the Court of Jus^-
ciary hinted at, to expect any countenance to,
or shelter for the inhumane act.
And upon a principle very near allied to this,
tha panDel'n pretence, that being virsam it
ticito, and intiusled with the execution of 1^1
orders, any excess, that for lack of discretion ue
may hare been guilty of, cannot be punished
pana ordinario, ought to be repelled ; fur il'a
obvious, the trust reposed in bim, and the duty
expected from him, was no more than to sea
the execuiiun perfected, and to resist sny vio-
lent attemfit to rescue, which should di«a|ipoinl
the execuiiuu of (he law. Now when the sen-
tence ■>(' the Cnurt of Justiciary was executed,
when tlie criminal was hanged and cu) dowa,
before any persun fired, tbe trust reposed itt
the pannel, and tbe duty expected from bim
ceased ; he was no longer an officer employed,
lo that cad for which the fire artns were loaded,
■nd his actions came to be estimated of by tbe
EBBie rules, that would have made them lawful
or unlawlul upon efery ordinary occiuioii,
where no particular danger threalned, and
where no necessary serrice was in view.
And therefore, as in such cases, tha nonael
miiHt becutivinced, that noibiug short of lieing
cunitituted in immediate danger of death with-
out firing, could justify him ur his guard for
making use of loaded iiie arms, he must in coii'
eei|ueiice ackuowltdge, that in the case in qun<
tion, no danger of life, which he could not
haie avoided, having threatened bim and hia
g^uard, he was a bantu lei y inexcusable for tiring,
and tliai therefore bis iniscbieTous and Inne-
rariouB act must be atleudetl wilb tbe bigbcal
penalty.^
An armed man who assaults, and wittioal
just cause drstrovs Huother man though armed,
and in no particular trust or confidence with
bim, the law cnnsiderx and demesoa as a mur-
derer; but whm the eaptsin of ■ city guard,
wbu has an armed furi-e coiumitird (o his care,
lor the good and Kufeiv of the community,
thinks fit, upou any sligtit offence or prutoca-
lioD. to turn ihnaa arms, and that toice upua
» orowd of ciUMOi lawfully aa wwll b« |iia«^
935]
10 GEORGE II.
Trial of Captain Porleous,
[99S
oently assembled, he is, in additioil to the
Ulaughter and destruction that ensues, s^ilty of
the most notorious breach of trust, and for an
example to others, whom it may be necessary
for the {jifood of the community to trust, ooi^ht
to be punished in the most severe manner.
Men so trusted are under double lyes, fbr besides
the ^neral obli^tions of diity and humanity, a
particular confidence is reposed in them, which
At the peril of their lives they ought to answer.
The procurators for the panne! complained,
That in the indictment he was charflfed with a
wicked and malicious purpose of destroying",
wounding, and maiming numbers of his ma-
jesty's subjects ; and by the pannel's sober and
modest deportment On former occasions, and
the whole circumstances precedent to the me-
lancholy accident now in question, endeavoured
to shew that he had no premeditated malicious
design . B u 1 1 his again was to no purpose : the
prosecutor \\e\cr heard, nor, so far as ne knows,
did ever any man before this time, complain of
the wickiMiness or inhumanity of the pannel, and
he has rccctvtd no inlunn^tion, by which he
can be induced to think, that for any consider-
able time before the fact complained of, the
pannel had premeditated tlio destructive action
of .wliich he is accused. But then his procu-
rators very well know, that ^fiw^ and •..rdering
to fire, imply, and are proof of a wicked and ma-
licions purpose of destroying those that are
fired at : < malitia' and ' propositum pnecedunt
ictum/ in the construction of reason as well as
law, and whoever wilfully murders and destroys
his majesty's subjects, must be demeaned as a
murderer, if his maiiciuus purpose preceded the
drawinsT of the tricUer, or givinj/ihc orders/one
monuMit, ns much as if it had been preconceived
a wholpyear.
These shevvs of defence, rather than defences
beinp;' removed ; the next thing* that comes to
be considered, is t!ie hisiory of the pannel's be-
haviour, during the melancholy transaction,
which his procurators offered to prove, an<l
insisted, would, if proved, be a sufficient de-
fence aQ^aiiisrt the facts charged in the lybel.
But in this the prosecutor can by no means
agree, for he takrs it to be extremely plain,
that every siiii^le circumstance alleged* by the
pannel may lie true, and yet it uiay also be
true, that he with his own hand nred, and
killed one or more of the innocent people,
and that he ordered the men under his com-
mand to fire.
It may for example, possibly be true, that
lie, at some period or another of the action,
called on: to the multitude to stand of}', or that
he \iould /ire ; that he at ^nme one jtoint or
another of time prohibited the men to fire, and
struck down the pieces of such as were pre-
sentiiip-tliei-n ; an<i yet it may also be true, that
lie at -sfime other {.omt of time gave the precise
woni of comma id to tire, and actually fireil
the piece that was in his hand : iH-lbre he lost
his temper he might have threatened only, be-
fore he took the resolution of annoying, as welt
M after he «aw iniachicf done, he might have
endeavoured to prevent a partieolar aet of kh
buroanity ; but his doing so at certain pcritin
ra no conclusive evidence, that at other poiirfi if
time his conduct might not have been very
different.
Were his giving orders, or actual firing di«
bions, the circumstances mentioned fhr Iht
pannel might create a strong presamptnn ftr
htm : but if it shall be prov^, aa it is diaifri
in the lybel; that he actually fired the piece ii
his hahd oflener than once, and g^ve (poatift
orders to fire ; what can it avail bim, that, 4
some other periods of the fray, be behavd
himself in a different manner, ahice both the
one allegation anil the other may be true ?
But the procurators for the pannel iniilkd,
That though the proposition they underlook Is
prove was m some degree a negative, yet it WM
so circumstantiated as to be cajmble of m poaitiie
proof; for they said that credible witnesM
could be produced, who would inform the Coort
and jury, that during the whole fray, they kcfl
their eyes upon the pannel, and were attentin
to his actions ; and that they could take npoa
them to say, that thorow out the acuffle he M
not fire his piece, nor onler the guard to fire, bit
that he threatened to fire, which might by per*
sons at a distance who heitrd the word fire o^^
pronounced, be mistaken for a coromand, ana
that he presented his niece only in a menaeiag
posture, but without firing, which might haie
misled the spectators into an opinion thai ht
did fire, though he really did not ; if any oM
who was near him happened to discharge bii
shot about the same time.
This reasoning however is manifestly defec-
tive, because the evidence of the witnesses, who
shall say, they did not see or hear, bear« no
proportfon in point of weight, to the testimoay
of those, who shall upon oath poailively sty,
that they did hear or see.
And I>e8ides the obvious reason for maintam-
ing this distinction in the common case, there
is a particular consideration that sujiports it, ia
the case of a fray or tumult, where shots are
fired, mui-der ensues, and there is a geoeni
confusion and surprize. No one could fiotti-
bty he so interesteil in keeping his eyen opaa
the pannel, >ihen it could not be forseeu there
uould he occasion to give evidence touching
his behaviour, as not to be lyable to he carried
off from that object, upon any fresh snqirizc
that happened in the tumult : the firing of a
shot, the flinging of a stone, the extraordinary
behaviour of^any one of the multitude, or of
the tfuanl, mignt impert^eptibly have drawn
the eyes and attention of any spectator Irom
the pannel, to that new object, and prevented
his seeing or hearing what he said or did in the
mean time : and therefore no witness, or nmn-
ber of witnesses, who should take upon him or
them to say absolutely, that the pannel did not
at any penod of the fray fire, or order tn fire,
would at all be credible ; at least moat certainly
they could not be credited againstauch witnertet
as should positively say, that Iboy SAW nrbctfd
him fire, or order to fink
Jar Mardtr.
ir iriiartiM eliill Bay tgkinal the pBotiel,
that Ihey mw him preient his piece and Hre,
•ltd Tar (heir cauta tctVnf i<r abull artr, lliat Uiey
BlatrTcil lire anil aniuke iwiiin^ out of lire
IBUEcle of t)U piece, iind « mnii dro)i (Jowu
tead in lite place luwanls which he poialeil it,
will Ibot evidence be suflicieiiily contradicted
by peraimit wlio roay »oy Ihey ubserted do
Meb llilog, or thai nihera of tne ^iianl tired
dnul Ihesatne lime, and at the same place f
it b tiuinbly thouglit it canitDl, treeniise thla is
Htting' up a oe^tite eridenci^ only agninst
firitive, nhicb Detlherlaw or reason penoiti.
Ami if credible wilncssra ihalt aver, that Ibe
Otptain dislinclly ordered the eruanl to Are, can
It Btail bim that other wIniGSies heard hirn
n the cruwd, that if they did not retire be
Are, wilhoal bearing the poai lire order*
P^rtDg ^*eD? In a tjmull every iodiTiduat
Wbol pTffisibly hear every Ihin^ that paasea ;
itthen it is nu evidence ibel particutiir words
I ullered in b fray, that Konic per«ans
il a fray, did not hear or attend lo Ihcm.
And Ihe pannel in framing bis defence on
tbU nrlick, docs not teem lo bare attended to
wlut it expressly libelled against bim, Ibai in
gtMl anger he said to the men under hta cam-
tmiA, npon their firinf; overthe beads of the
'fanlliliide, l^vel your pieces, and he damned.
nslaiice, should il be proven, be
R Gonaisteat vitb that part of the defence,
"A tends to render the expression fire dabi-
f jr the pannel'B pnssion moved tiim tn
^Ibe expression, level your pieces, and be
■ed f it it a( all doubtful in what tense Ihe
1 Sre traa pronounced ? T hes« tliinf^s are,
'UMu^t, too plain tu be further insisted on.
^■•Tlle Only remaining circumstance, oii tvbicb
4w procurators fur the pannel seemed Vi lay
HreM, was Ibe condition of his firelocif, when
the action was over, and bis voluntary pre-
^jMing himself ttefore the laagislratea, trhen
^Hrcouhl bare made his escape ; from nhieb
^^■j^ woald have inferred, an impostibilily that
^^Kt|» gtfitly of actual firing, his firelock ap-
^^pbiog not to have been discbai^ed, and a
■mg improhabilily that he vita conscions of
iMvitqf givtn any criminal urdeni, since with-
ewl necessity be freely presented himself to
•JHlice.
" r as to tbeie matters, it musi be ob-
, llrsi, that ihe condirion in which ibe
HkI^ firelock appeared, can yield nn evidence
■tini : A piece ibal has beuu fired may he
V'tntdpd. and *u cleaned and hni«hed-iiii, as
lo tPaipmi n-aliBe nrmarlioftlie former firing!
and Ihe pxiv wbich Ihe [wunel made use of in
lirint;, nii).'hl hate been changed, and another
{Htidurrd loihe mngiitrttes in ihe room thereof.
But udly, ibe indicimrni no wliere avers,
thai tbe iMiiioel made ate uf hit uwn piece when
ha tlrM. Where lia is firsi chained with
SriMT, nu more ta aaid, than that he leveled
the nretuck tliat was in bit hand, and fired it nt
Chadea lluaband. Now iho firelock ihal was
ill bia tiaud, ui;[titha>c been thai belonging to
-mtUKta IM*| umtl u bli own : dod in Ibc
A. D. 1736.
olber part of the iodictmcnt, where he i
charged with llrintf, it it taid that he made ua*
of a iniiskel or Brelouk thai waa in bis hand,
having eilber re-luadcil, or caused to be re-
loaded bis own pierce, or having taken anotbcr
nut of tbc band uf one of the guard : 8o lliat
tbe lybel in every arliile of it may be true, and
- ed i and yei il may be alto true, that the
el did not fire his own piece,
id as to Ihe article, that ihe pannel, coH'
acious of no guilt, appeared viduntary before
tbe magistrales, tvbeii be could easily have
madebia eacape: Il can possibly inlbrno prc-
tnmnlion fur his innoceuce, if the facts charged
in the indictment are made good. W'lioever
shall be satisfird by Ibe proof, ihtt the paunel
acted in manner lybelied, must be convinced
that he was governed in his aclions by no pnu-
ciple of discretion, and must therefore lay no
tveigbt upon an act of bis, which can yield no
inference unless he is supposed to have been
governed by ditcretion and prudence.
Havinglbus run over tbe several circum-
Blancea of the pannersnarralite, Ihe proaeculor
apprehends, be may safely conclude, thai ihey
cannot jointly or separately, be suslained aa
a defence, again^it tbe chai^ laid in tbe indict-
ment: Because, though every circumstance
alleged were undeniably proved, the unhappy
(lannel mieht neverlbeless be guilly, and a po-
ulive proof of the facts charged niiut necet-
sarily prevail with every unbiassed jury-man,
ID join in a verdict against him.
The protecutor is nevertheless far from wish-
ing, thai the uurcrtuoale pannel shonblbede-
prived of an opportunitv of laving every cii-
cumsiance that may make fur fiis defence be-
fore llie jury by proof, though he humbly in-
sists Ihey cauut be sustained as a defence re-
levant ti) assolizie from ibe indictment. It
is possible tbe fact may come out otbcrwise in
the trial, when wilnetisct are upon oalh, than it
did nlien the exaroiuatioD was taken in tlia
precognition! and should the proof of tbe in-
dictment be in malerialcircumsianeet defective,
the evidence offered tor llie pannel m.-iy have
its weight; wheretbre, «a far as the forms of
tbe Court will allow, the pruaeculor makes no
opposition 10 the iudnlgiiig the patmel to bring-
wtiat legal evideuo: he can, fur the infortuation
of the jury.
It is far fVom being the interest of the crown,
or of the public, that an innocent man tbould
suffer I but it ia greatly tbe intrrest orbolb, thai a
fair and strict inijniry be made, where tbe guilt
lyet, when a massacre hi cruel and so dauger-
oui happens, to the end, that if Ibe ofiicer, who
has power put in his baud, for Ibe preseivatiou
of llie peace, and for liie prniecliun of llie
jienple, ohould, from any ui^uat motive what-
ever, make use of ibal power in breach of the
taws, to tbe deatruclinn Uf llie jieople, be niay
ba made an exnmjile lo restrain oihem in Ibe
tame circnmsianc«4, from Ibe like mouatruua
anddnngerousnbutea in lime coming.
In resycui whercnf, Sec.
Sw SiiAirriKtiir, Dim. Fn
9tS9J
10 GEORGE 11.
July tath, 1736.
Trial of Captain Porleous,
[9ia
Information for John Porteoutj late Cftptaia
LieuteoEDt of the City Gaanl of Edln-
' burgh, agaiDst his Majesty's AdTOcat.
The PaoDel stands indicted at the iDstanee
«f his Miyesty's Adrocat, for bis bigbness's
ioteresty for the crimes of murder, and slaughter,
xnaiming, and wounding ; and the facts char-
ged against him, from whence these crimes
•re pretended to be inferred, are these follow-
ing ; That the paiinel being one of the cap-
tain lieutenants of the said city guard, was by
the magistrates of the city ordered to attend
with a detachment of about seventy men of
the said guard, at the execution of Andrew
Wilson,^ sentenced to be hanged by the High
Court of J usticiary ; and that the said Andrew
IVilson, having hung upon the gallows, erect-
ed for bis execution in the street called the
Grass- market, until he was dead, at least for a
considerable time, and so long, that there was
ground to conclude he was dead, he the said
pannel, conceiving a wicked and malicious
purpose of destroying, wounding, and maim-
ing tbe persons, inhal>itants of tlie said city,
and others assembled at the said execution,
did, without any just cause or necessary oc-
casion, order the said detachment under his
command to (ire upon the people so assembled ;
and that some of the men naving fired, as it
would seem the iianael apprehended, over the
heads of the multitude, with intention to avoid
doing them harm, he the said [Ninnel did with
threats repeat his commands to fire, calling
out to the men to level their pieces, and be
damned, or words to that purpose ; and that at
the same time he levelled the lirdock that was
in his own hand, takiurf aim ^i one Charles
Husband, and having nred the said firelock,
the said Charles Husband immediately dropt
to the ground ; having received a wound or
wounds by bullets or large drops of lead, where-
of he died in a short space ; and that by the
pannel his said example and command, seve-
rals of the said guards, to the number of about
twenty, did at the same time, or soon there-
ailer, fire upon the innocent multitude, by
which fire two other persons were killed, and
several others wounded, maimed, or hurt;
and that the said pannel having thereafter
marched off the said detachment of the guard
into that part of the street aforesaid called
the West-bow, he did again, without any
just cause or occasion, order the men under
his command to face about and fire upon the
people ; and that at this time, tlie saiu pannel
did fire a musket that was in his own hand.
havin<jf cither reloaded, or caused to be reload-
ed, his own piece or firelock, or taken another
out of the hands of one of the guard ; and that
severals of the said guards did upon that second
example and command of the pannel's, fire
upon tlie multitude, by which fire three other
l»erson8 were killed ; at least that, by the said
ilrings of the paimel, or of the firings of the
•ther meo in the said detachment of the guard,
proceeding from the panncl'a order and «-
ample, the several persons meution«l in tbe
indictment to have been killed, maimed, or
wounded, were all respectively killed, wounded
or maimed : Whereby the pannel is guilty of
the killing, wounding, or maiming the said
persons ; at least is art and part thereof, or ae*
cessary thereto ; from whence tlie indictaMot
concludes, that the pannel ought to be punished
with the pains of law, i. e. capitally.
To this indictment the paunel pleaded oot
guilty ; for that he had at no time, during tbe
execution of Andrew Wilson aforesaid, given
any order, or shewed any example to the wud
detachment of the guard then under, or that
ought to hare been under his command, to firs
upon the multitude so assembled ; and that he
did at no time fire any piece or firelock hin-
self upon the said croud ; that though it roigfal
be true, that at, or about the time of tbe uid
execution, several persons were killed and
wounded by tbe firm^ of that detachmeol
of the guard, which indeed ought to have
been under the pannePs command, and which
he does, with great grief and sorrow, regrete;
yet that, as such firing proceeded wholly from
the men in the said detachment, without anr
order or example from the pannel, so be oonM
not be charged therewith, however fatal or
tragical the consequences of such firing, may
have proved.
That though the pannel, as conscious of kii
own innocence, could safely rest bis trial upon
the denial of the facts aforsaid, and upon such
proof, as he could bring, by the evidence of
multitudes of persons. of undoubted credite,
who happened to be present, close by him,
daring this unhappy scene, that he was
no waves instrumental in the killing or wound-
ing the said persons, but that, upon the con-
trary, he did all that was in his {tower to pre-
vent and restrain the said firing upon the mul-
titude ; yet, that he was advitied by his counsel,
that they could not, during the conducting of
his trial, consistent with their duty, sufier him
the pannel to omit or abandon any defence
that was competent to him in law ; and that
therefore, as by the law of Scotland, the plead-
ing to an indictment, upon supposed facts, is
no legal admission of such facts, the pannel
was at liberty to plead any other exception that
lay against ttic form of his iudictment, or e^en
to plead, that thouj^h such firing had pro-
ceeded from his order or example, yet even in
that cose, such firing, and the consequences
wherewith it was attended, was not sutficieut
to support the charge against the pannel, of
the crimes of either murder, slau<jrhter, maim-
ing, or wounding, or to render liiiu obnoxious
to the pains tibelTed.
And in the entry of the debate, the procu-
rators for the pannel ask liberty to ofler to the
Court, a full recital of the behaviour of tbo
paunel, during the execution of the said An- ^
drew U'ihioii, and for some short space pre- '
vious and subsequent thereto; and also, lo
oflfcr a short relation of what they appreiMod
mta the caniw, iliat the execuiinn or the aaiil
Awlivn WilMiii wSB Blleadetl wilh sued an un-
MMsl confluence of p«op|p, anil whb ordered
to ba guardeil nnd oierseen hy such * du-
menra* anil uoBcciistonieil arraeil force.
fhr said Andrew WiUoii. ulutii; wlih one
BebcTl»nii, and nihcrti, IidiI In-en bRnlriiced Iu
teUli by your |nnUlii|is, Tor rolil'in^ one of
Ae oollecior* o<' hia mftjesty'H revenue of
MUMeralile sum* ur money of llic public ;
wd wliik- they Uy uudt-r llieir u<nteoce. Iliey
we allowed, m usnal, Ut )ro lu tlie vliurcli
aAaining to Ihe |>ri«uo, fur tlic beiiefid! ol
4mn« tcrficc, under Ihe custody of a small
4«l»cbineut ol ilic city gunrd ; nnd while tlie
COntict* were lliui nt churcli, RobertBon, one
•f tbcm, fouud (ndina lo esc»|ie from bis
l»e|)en of t lie ffuard, by suddtnly Jumpiog
tttr a iHtm, and gellin|r nut at ijic doer of
Ifct cfaorch ; his reirt^l ap|iarenlly being fs-
id by llie innb, or loweil sari of tlie |jeo-
Fnta IhisrKCDpeof Robemon's, sofaTotired
hf tlie moll, and from strong inrmises and
•Bgf^ionn, tbat, al theexecuiion of Wilion,
a iMeue was intended by the moh, which In-
denl there »u a reruonnble ground to appre-
Iwrnl ; becHUDc the common* hare imbibed a
panieiooa and absurd conixil, as if the robbing
of Ihe public money, was a crime more par-
donablr, (hon prirate robbery: ihercfure it was,
M tbe pnonel apprehend*, lliat the magistrates
of lli« cily, from a sense of their duty to pre-
««M ibu vxcturion of the laws Itein^ any fur-
Vter rliTfenit^iJ liy (be rescue of Wilson, took
Ihe >ti'«iit;est precaoiionH tl<nl the execuUoD of
^im abonlJ be made effectanl.
In cOD«pi|uciioo whereof, as would seem, Ihe
mnal of the city sent lor the punnel, in
wheiDt he mutil take the liberty lo say, conft-
^toce was g^iierallv put upon those dilficuli
Wcaaiiraa, and tolJ him, that iherc being
ftMt apprehenatons of a mob at Andrew VVil-
■oa'a cxeculion, that llierelitrc there was a ne-
cmlty U> be well jirepared lo prevent their
4(riCBa i and for that end, that he would bsf e
tka wbole city guard In atlend at ihe execution,
it bavinic given orders to the town Iceasiirer to
flmiiah the men with powder and shot, and
aneb other niililary amroauilion ns might be
BeDtaaury for the use of tlie men in maiutaining
(Iw pcac« of the town, and suppoi-ting Ihe
'm of the lawB. And this conference
t proTOit hs^peoed n^Kin the Blonday
Ig the encQtion «f Vi ilson, which tb)-
B lh« Wednetday thereafter, llul it
ra tMfiHratta of iho city, not thinking
k pHcaution tiiffieienl, upon the Tuea-
>'4^ therrafler, the provoat aeni the pannet
«nh a li-llrr to [fencntl Moylc'a residing near
like <iiy, anil chirf commander of (he forces
li SmUatMl. telling the paonel, ihat the iin|Kir[
4f thtt IrUtw wia, defiring from the genrrat
•a onln fur a pany of the regimf nt lying in
Ihc C*iin(Tii-|iale tu enter tlie city {u thing
I, aSoept in the caM m' ur)(ci)t
A. D. irsrt.
neceuily) in order to over-awe tlie mob, and
tliereby luuintain the pcaue during lb« said
e^tecaiion.
Il aeemstbis letter to the general induced
him to send a verhu) mcsstige in return thercUr,
by a [lefBon of known honour and veracity,
fiiHJor Pool,of Ihnt refiimenl ootv lying in th«
Cannon-gate, who lold Ihe provost, Ibat tha
general wanted to know uf him, what part tha
kiug'a troops were to act. and what precau-
tion* bad been taken lor preventiug any insult
or invasion that might l>e made opon the troops,
or what length lliese troops nivglit go in (h*
case of tumult or diUurbance. I'o which the
pruvOTt inaik answer. That llicre waa im
reason to apprehend any incouvcnieucy woutd
hap|>ea to Ihe king'* troopa, because he would,
have them Only to parade, for a terror lo tha
moil, in a Mreet called the Lawn-market, re-
■nnved from the sight of the ececulion, bat
at a sma!l distance only, where nercrihelesa
lliey wonbl be ready at a call in cose of no-
ccssiiy ; hot thai he had ordered the whole
band of Ihe cily guard to atlend at the execu-
tion itself. Willi proper arms and ammunition,
namely, slug Ehnt, witli orders to repel forca
by furce, and even to discharge their artn*
among the mob in case of resistance.
On IVednesday the dny of ihe execution, in
the tbrenoon, the pannef attended the provost,
and told him, that in obedience to his cam>
mands, Ihe ineu were all ordered to be in rea-
diness, tbeir arms pul in order, and loaded ;
whereof tlie provost approved, and lold tha
pannel, ihai he was to be ready betwixt two
and three in the atternoon, wilh his guard, and
U> draw out until the party of the king's troopa
from the Cannon-gate past him ; and Uiat so
soon as the king's troops were drawn up in tha
Lawn-market, the pannel, with llie ciiy guard,
should forthwith march lo the prison, and con-
duct the prisoner to the place of execution,
tvithoul allowing him fir$t to go lo the town'*
cDUDcil-hoose, as usual, slill wilh intention, ai
woald seem, to prevent any opportunity of
rescue, or disturbance upon that head; and at
this time in the ibrenoon the pnnoel bnmbljr
proposed ■<.> the magistrates ot the city, that
tliey would senit a proclamation Ibrough the
town, as a caiiliou In such iunocenl unwary
people, as ntiffht by curinslly be drawn lo Ihe
Kight of llie execution, warning them of their
danger, in ca«e any dislurbani'c should happen,
or attack be made' ugion the guard. And ac-
cordingly George linilsoy, one of llieir clerks,
made a scroll of the said proclamalion to be
sent throuKh the town ; but for h hst reason it
was not proclaimed, llie pannel knows not, and
at the same time the paunel rempiuliera some
one or other of tha common -council of the city
proposed in case of disturbance, llie reading of
liio Riot A(rl, and for that puT|>ose tent for a
dozen of conies uf llie act to a bookaeller'a
shop, in order lo distribute them among the
pniiiCT nf&cera of tbc law, autliuriied tu read
and proclaim such net; but it sernii al au
limn eilhat wl ihosa proposals were y ui il
^•rtinQ : sat )r -h^ -.ni;« -ji* -•up .^a.!! ^^•fntion. T li.i fi»n f>ri> a '.li#^ b*m» u^nncd dwpn-
ii4 4ny '««tir««r y ti#* r<\v )ii:ii*ir2/*«1 ua jrK lei. uu: iuil u.-^rr.a^ i .d '?9C1T9V, he wm
^im 4ii«*:i u". vf'^i'i r M 'if- liinnpi. i^ijri*u*»n»tv-! .1^ i«e £• i^ jaigni -ifciiimH iht
j% «iftn«^. a«i4<A ^.r^. -.«•« ivfuiH tnar^i^i ii-rtV-faiTii; u tic- •svriux^'.n ; :i[>r no cnouul
-ynh iMA nwn r-tm \w j-iani-tifMi*^. invru^.U ^sin i«* -:u ia^:i tmb i«e ^uavu rniK gpMlfai
tSM pto«v» m' •v>>.'i:iiuin !«• vvi ii«*sr4 ja}'. ''.uu ipii>r 'ir a s::!/ luiiU*. loMi a mi igvMSt ihtf
ii# .••rt lA «*4rr.-'iir.*4 .n .un 'ii»T : 11 whitiii i :tiea7iiua« us juiu^ 10 -lotii je :s coBplodj
fA^ATti !n<il lion, ".i^ iM vr-uiiit ^ ium 4caa. 4tr-«*e3t]ie -^ lie sesuf»r^. wtiirh aivip
•#hnn^; and «r*/!*'kr.iiiiq;'y :he «rt*->|fir%i 4ul. ia eatnnuaiiii lui'n -auiTTc* u) ie luagetf attil hi
^*-4^r<v. -^r' w^*rti .>t si« «««. <«p«9 tSie le ileaii - ai»?r«iiie .1 «';■ ~tiai ihe pHiiicI lat
(.annr-'. « 'Mr'ra*;' iat -vht^^n i «i4 ntmnr^^ 1 mna'np' ui ±e Jiiilit^ :o know if besboiiA
tk4t iji*^* v^:> Ao -Mf "Stf***. ami pot ihre:? indSn* :!ie cr.niiaai :o 3e int «iown fiom ifat
ej»i<<*9vf'^ h^r^i'i. jt th niu» <)f viiira ihe f:itliei: «*i*i in ii*;*! i lock ai Answer. diM ifai
Wr^^n eK«s "j- n(iin:«i wm 'uiniiacusd » i.;< ^c dual bme ill e iDob vi^ad dSBBBdioK Wdi
ir.rtifi'il ^Tt^M Vir aM •7«iuir.An, t.i«» -leUAn- 'yH-iif v^j oiraixiiau. JBii Treac hard «^
m^nc *>< M^ r-y t'i*!""* «^^ o'WM^ii 'vn !,i* i*ie z^iari. ami v-uic :iie ^laniu:! waa
«ir44' tv k^^o 'ttT >h4 mr/« : vie .wrac^ ot' » tmrjii^r a** foiiiMSfs. at lois oui tif the
#,/rr%feHi tiniM-n^ <vk. i»^ (•">» C''.r.i-nn:irji.£% nir.i «■>(&« •;(' tiite cimvia's iheoifai. asane4 hy Ae
nrfy^imrvqf (r. *j-.< w!;tf?!'* t, par -.f ? .•> r<vr>. ''.^ Eot\. -^^etueii aaA^^ortmurruiil ciuhimiHi
nn* )m ifKA**)^^ r>ir 1 1<^ f>»nrt .. r;k%*. 'i^^V •^''< ic^ cJii-? cJc ^iwa. vw ui die puifgrwiMMi
fip«Mi • ^4'% ^t in^ sr.v'.^d, t '.'. 'l** ^''^sxj.-c ''jf k":^; L^jT Af u«e i]i<:ii. who were daiiea.viQanB$li
liU m^n. Ill ^r>r %/• un-*^. z ci'^-»r tk-v fit u^^, r^^.n^r: tu^Et M l..v. hj cmna-.D'X Uie fOBi tf
4«*eripiiv^'« t«v -«« r.«r»rit>^7 RV'tr.'.4A::frj. £»'.''.« a.'XA U be'''uai4ifi : ^ -itfuier it wasiktf
HAAttfy nfyf <A Urt h'irT>f<^ 'ip^'n u*^ £;*bij^r. recr.var b.m o«ti ic t&eir hantlii. as bating I
Ih^ ertj WiJi^ irftm^iat*!^ wi-h-i.-e-w r.i^» l-;, ^int d^-^n ii:..'.oc: urder : or Liac the ~
4«r#H«y ff^^iiui^, %rA \u vt^-w or th^ »c*fT<>l 1, toe Uw wcr« rfeMpud to see bid iateiBiiili
>mt wt^h^it :«»v»r.{( 4r»y 'ir^^.r r^r r.fficcr of tUe &n<i ib.uLe « l? «Tecm<hi oi ileu.) ; or Uwilhe
itwiff%tynnt\ 9,iiht.^. l%rtr,^,i: Ar.iit hsilhap- <^ciDvi.'t's Ixi'ly visinscfoii^ 10 be siivca wk
p^vk*^, t(i«t v.m#! Hh'*rr ^;^:c> Urf.r^ th^ act ft f af-a^'niizel ^-j. tr^ «uczeuod, as is somefiBS
*x^/i«ti/ift, wi,:> til* rri:i.*!fT "^'i* r»«^.-:.n^ ti.<5 prratt-''-. sr!:. re |;<cr?oc3 .if" :.>'!¥ u ::jree or Mit*
CfirniruMr/ pr*y«:f »':*: r«Hr.r.f:i r.-./J sf'-ric i-p 10 rious o^tefirr^ a^-e *«4:'-cat;eJ i.> Jeaib; or
j'rtf», l*!ii»ir.'^ fi.« ji!«'/.* V. : ,4 ir.': *:'.-^»;irjt; and fr-im ■•• Ui"> -"-r Tk^-.:.-'C ii pr^'ckJeJ. the BMb
«/» v*'»ri *< \».U',.f. j»r»\«f ♦.»;;*'■.:. I, or v.'::f- ly^'^^n ti i..s .".t i:,i aiLLck L;* ::ii.dr«!: And
short tirfi'r ;itr*T, ^n'J i^f- r^.^.f: i^it 1'* lis ■.if.'/.i t...; i.mliC .1 w.ft9 L.-ti i.ij ii:-ia aforesil
own pr»v«t'- »!«■•.', »y.r., il.f {i:j.',... . • , .k hjr;'< |,,s h . i hi-> s-j^'.; :.j.- •.!.-•:« uf kec ; ar-i anodMTM
fii^-r" in hi« iiaji'I. *:rl &{■' r-i^:-.-'! . r:;:.t off |^J«; J,r Ur:»l, \Ua li-; i!.i-» ;jt-€ti ce^^r iJie lo ilAdotr
o^r^fToIrl, un'\ f.'#u»i lj:rr.,*lt .T. tiif Vi l L cnri s:;.'.*-; an<i Iti*" L...'>«:r '.r' luc: d.nii^ was knke
#»f fh«: r|#:t4r,firif«'riioJ' il." yi:.ri!. ky tli-i I'jrce ul" Ci. exc^.£u;L'^ lipje 5iOlielli3l
Nr»«r»fin n-i tU*: f/iriTifi ha^l In Ii-m'^ ij^> as »ai iliru^n. add screnil bioers of tiie mca
ofor^dairf, and tli.jt tl,*- r.it) l*.;!;i#s h'.'l vfit!i- wcrp Kurt;; .id u-uiudtil.
drawn from thf: s« 'if^oid. til" in'.!> lirr-^nir; fo |ji- Titii tio'.vrxe ij tLe ir.oo so a'armtHl ilie
troiilfii'^'inu', in'Tj'Iintf^ »'• v.r,ij| 1 '„' » ,.|j to i; ■• pansit.I, lh'»t i.e fuailea »:.-'i t^r ?wo rvrvarlsia
thiii lavt^liif't, iinrifiliaif ly to f:iit d f- ri ili^rri- the ucst^^aid ot lUc sccri'd*!. turo'.jff .i'hiiuI'S
miri»l, »nd <'Md«Mvoiir to Itnii'^ inrii to IM;- I*y I'hcc towar.'s ihe v*.e»t {.urs, tr-ni nbvnce the
Iflfpflditf ; an f'X[if dii:ni: nliif;li, utirn tiM",iiAly liiroMin^ ot'lliri sioiies Uio^iU |'p.*v;j«!iid; and
R|i;)!i«:d, liav on many otlitr tutasifu'* Ufi.-ii . Uaxiu^ \t\it h.s piece to ii«s sht.;iidcr, be le-
kriowri lo hf. iitl''rid(*d uiili surrt'ss, itw\ tijf- = v<rik'd it at the mob, and {•o:r.;i!)fif it aruuodtp)
nioh ffll H mnrmnrintf, tli.it tlfy \t(j;:M Ii:iv ; ; liicjii, tlirc:itei.("l with :.ii uuJibi-.' vuk'e, thai it
liini inMantly rot down, and it it urr<- i;ol tiifiy ^^oidd iMt beat (it^ac?. ami leave off thn}W-
fjiiirkly done, tliry Hould do it tlifinM'lvf.s : ini; sioiir s, nu 1 altackin;^ l\\e nwii, le woulJ
^tid at tl>i«i lini«* tbf;y |»rf%^(:d hard n|»on tlif: , iin; innoii-^ tiu in ; liut iiniiie«l.aiely iccovertd
l^iiurd, atrikin^ at llifiri with Mi'-ks, M'ixiii;r of ' his |ucce uitliout firing' it ; the threatd fieio}^
III! If firi! ftrrnK mid hayoiii'li, and throwin;; ex- ! only intf/mlcd to intrnidaie the luob.
r«*( -din|f hii( ittomit at thi* ^unnl ; oni* whercol' \ Hnt iintoituiiately upon this enftued the n hole
nit n driiiniiifT to tht* ^kiill, nnothrr hroki' ' tniirical sctMii.'; for no sonuer had the prjud
oiKiofihfMncn'NHhoiildiThonm, another wound- : Kti'i'l (orwurd, thn att-nin*; to fire as atoreoid,
rd oiiff of ih«'. nif'fi'fi l«'i;^t mul Miveral others of ; hnt 0:10 of iUu men cauie up l'ro.:i iM'hind biiii
thn iiif'ii Wfri! WfMiiiflcd, whfrfhv they are yd and riiniiins' hy him upon his rif^ht hand, ia*
uhahleto do duty : The tniih nl all which can staiitly di»«iiHr;;rd his piece ; upon which ""
In* ntlcalPfl hy ihrir ciiinniyii mirKeoii, who is
-liy ilin city ordered to aUeud Ibeoi upon all
tiigcnoin.
4
id'the crowd dropt down, suppo»rd to lie Charkf
li unhand, and which Charles llusbaml will
u|Km proof be found to hATo beta tbe pcnM
/orJfi
mho tHBiuUiioaily Mc|it in anJ cui tlottn ihe
fa'il^^la).
, lotmnlutcly upou lliis Hrst fire, another nl'
lilt ganril vaiA« up lo the |Mtinet, »iili liiv
fifOt preuiitnl and cock*d, anJ ntkeil il* be
afaauld firs; to wbicli the paancl answered
Mitli MOie vchemeure. No, by no meaos, and
•truck up bin piecf , bidilio^ liim go to Ilia renk,
UXl actiialty (hrusl him ihrrolo.
AAer the exainiile ni' lliii firvl (ire, levernl
niure ol'iUe roen nere heart) to Jjsfihsrge their
|IKCt| tiul upon what provutation the p&nnel
■UiMitlctl-, tlie«e dials having been at a
tOOMderaUe ilitiBiice from the psDn*'), pro-
Mttdisg, u is guppeacil, from lucli of the men
V trere staiuhng at llie south treut comer oJ'
JJm Cwn- mill bet t wheress, us ha« been no-
Jjtic4, the pauiiel wm •iU) HanAiaa st iius tiirmer
fUlian, to llie west of the icatfoM aii<l giibbel.
Tbe pBDDel not Jcooitiutr the fatal i-oiise-
foncea ul' ibow kIii^, but xuapeciiog however
fkU loltcliief HOulU liap|icQ, se«ui); the meu
tsd b«en so raib as to 6i'e witliuut onlurt,
ibWiglit it was (he Lent course he could tiJie,
lo lead oS iltc men of Ihc guard as soon lU
JIm oould i and fur ibat ead be called aloud
M tbem to follow bini, soil after luuringifueii
atiart to the icrleBiils lo gather them la){elhe]-
tftir il vns iiu{)ussiljlelo bring them Jnlornok^
. I'lii iif the mob) lie marched «lf as
I '!<- be cohIiI find, by tlic north-
.: Jil, UHTardilbe foal of the H'est
'.> :iiJe u parcel of the men, whom
oiu' iif ilir ii'ijcaols bad got together nl the
ibot of tbv iloH' ; hul as hu wag g'oing lu joiii
.tkat parcol of the men, be heard a piece lireil
nfein, with svtui;b be n at a gnoil deal siir-
. yet luore, when be oliterreil two or
k tall to liie groiiDil, and wliicli oli-
KU ttw lirt,t ibiug that greally
il the (MoiieI, IK kiiowiu^ from theuce,
^__W>inly niiacUUl was done : but ii U cer-
_K^MlbiR fatal abot did not proceed from the
{•niifl, but fram a (Mriaiu man ia the Ktuvd,
Ifast can b? well prori'ii ; wlio, after liaTin|>
4m4 ihv* sliot, iniiuei I lately rciired amongst
4lia«.-»inl, nt)d then gote himself Joined to the
i^Vlf : and xui'dy the nuigisliotaa of the city
nil raowiiber, llial laheu a precognition wat
uLiugoJ ilir several fuciB Mid occiirreuccaupoo
I < 'lay, Ibat a ccrlaiii person iihl
I'l.y would be pleaiea 10 aiit tbe
ilicijuard before tliem, be would
:trMi who made ibis last fire, but
>DF ni^^iin mi't ovetluaked ibisoller.
ifaMKin Bi ihe tunii«l saw thore was do rc-
tlf>i''tf IT Iltf tBOD .from ifcegtilarities, be
Barched off 10 many uf'thamas be liadjjotelo-
fatliir, without tttkmg liiiw^o tonne tliem iuio
•Bjiwdrr; iriiiiigunlenalUie.aainvtimetolbe
atprant". t» beat aod presi olflhe rrM with all
maa^tx ol diii|Mlrh. Ujion nhiob he oUorved
t ibat hod ilng^M come off partly from
ITobl, aod portly from eatt-eiul nf
~''.ii, and tall into the rear ; aud
, _ ]«l was lli.ua .marching up the
UJM tnal gf tbt fqicoMat put of
A. D. I73S.
the mep, and bad come bb far asthelurn of ths
Bow, he beard some dioppin^ g|iot« firiog in
the re»r, and about tliirly ur forty pace* disUnl
rrom him, wbidi he suppose); ttiay have iiro-
coedcd from Ibuie men who were atragglinv
Upon the casl vide of ibe Comiiiercate, nign
(0 the lli'ad of Ihe Cow-gale, but upun what
nccaainii the panuet knows not ; but being
alarmed with ibe aliols, lie looked back, sup>
poHinz the men mii;ht be attacked by the mob,
and iibserTiag no marks of any lucb attack, ha
tbougbtliie most prudeul courae becuvid taka
was Forthwith tu march ofTihe men.
it fall* here to be iiMiced, ihal all ibia firiDg,
fi^m fint lo last, and whereby su mucb luit-
cliiafUas been done, lasted iioi above two or
three miQules ; aod therefore, GOnsidering tha'
violance of tlie mob, ajid the straggling si tualbn
of the men ol tbe guaj-d, DUd aiipposiDg ibf
trulbnf the above narralive, wliidi will be at-
tested in priiper time by (be aaitit uf many
eentlcmeu of uuiloubted Tcradty, and w ha
had lair opporiunity of ohservalioii ai tke timv,
it i> IcU wilb the Court, and lo emy iuiparttal
liy-atnnd<v, wbethor the ifauiiel could well
liaredoneiDore for tiieaafeiyvf itte burgh;
considering iJ I nt it sliall a1;o l)e proved, thai
during Ibcse fi^w ■oinnteaof liHnir, ai:uumpa-
nied witii greatbtirry and cuufusinn, tbe pautial
ga»e sercral repeated ordj^ra to ijie men to re-
strain from firing ; but observing Ihosi: orriora
prove iNcfleclual, lie ejiileavuured to sweep
lliem otTlht! field wilb all niaoDec vf precipila-
esteemed eoiuewbal incwisislent wilb guilt,
ecpeciallv such horrible guilt as lie is chargi^J
uith.) Upuu Uik arrival at the ^nard-bouFv,
he drew up lils iil'u tlitre, scndio;; a aerj^ant
to Ihe provost for orders, wbich were brought,
that tbey should wait nu their anna lill the
king'a iroops paat; and some if tbe men m
waiting, oAeriiig and aitempting lo clenu tbeir
Ifiina, Tint the jiapnel discharged it, aod would
Dot .allow il ti> bi^ done ; mean linic a cerlain
^erion uf orrdit came up to Ihe panual, and
aiked ii' he had fired t To whom be nioile
ausw«r,Jiel»ad nal; biKtbepervin iiul bcioff
aaliafied wilb llkeaaswer, put hu finger into
Lhc Kuuxle of tbe panoel s piece, and aDcr
having rubbed il about, aod alter bavuigalao
viewed Ibe look, said to Iho p^inuel, 1 see you
have not.fired. and 1 aniK'adul'ii.
Tbe king's trwiiu haTiag passetl Ibe guard,
the pnnnri filed oil tbe men into the guani, and
orilered the aerjeanls lo keep tliem close till
farther ordcr-i, and by all ineana uol lo sitSier
lUvoi to clean tbeir pieces : and nt the latqe
timathe ponnel debveted liii corabipe, loaded
as oforeaaid, at llie guard door, to one of Ibe
guard, neither (■ntering Iho guard liLiiiiielf, nor
any other house, hut )*eut iuintcdiattly to (t|e
proTOal: lb as his own piece was brnugbt .bock
3P
!»1]
10 GEOft&e II.
Trial of Captain PorteouSf
[958
fiftotitioii ti 'Bituation in which he ^kM at the
time <if the firiogf, the ptnnel can hhe^ that it
Was impossible lie could ha? e killed the person
Whtim ht is charged to have shot ; by deiccrib-
iltg And proving these circumstances, be may
h$.fe fUlvactagfe from them, but cannot object
to the prosecutor, that he did not niinutelv de-
scribe his situation, which wai not known to
hitn } ttnd that by the describin)^ of* which,
perhaps erroneoosly, the prosecuttit migfht mi-
nister an unjust occasion to a criminal to escape
justice.
To which it wa$ replied for the pannel, That
tbob|[;h it is true tliul, in most cases, the de-
scribing the street \vhiTe the gt/ilt was com-
mitted, would be a sufficient description ; yet,
that, in the present cate, #here it was laid in
the indictment, that in a crowd or moUitude,
yafioos shots were fired by difierent hands, and
thereby ivounds i^iven ; His even necessary to
describie the particular place of the street uhere
such woiinds \^'ere Feceived, in order to form a
judgment from #hosc hands those wounds had
proce<!ded. The paunel might have tired elu-
sory', or in the air, and the wounds received
may have proceeded from the shots of others :
that though the pannel knows his owu position
and situation, tod can prove I hem ; yet such
proof could not avail him, nor be received by
the Court in the point of relevancy ; because it
would be a simple negative, which could not
be admitted of, nor would not appl^, unless ttie
particular places of the Street, lu which the
wounds are said to have been received, had
been described to him; a situation which the
pannel cannot be supposed to know ; whereas
the proseciitor must oe supposed to have known
it, seeing the same information that led bim to
know of the wounds rerciveil, must necessarily
upon inquiry have certiorated him at what
pwces of the street surh wounds were received,
seeing the matters and things laid in the in-
dictment, are charged to have been committed
at high- day- li^ht, in presence of multitudes.
And though the pannel is fully satisfied of the
good disposition of the honourable prosecutor,
to lay a fair and certain indictment against
every pannel, >et it must he adniittLd, that all
indictments ought to be laid with all that ac-
curacy and full description tliat the nature of
the thing can admit of: and, ns to such part of
the answer for Lis majesty's advocar, as saith,
that such particular description of place, if per-
haps erroneously described, might minister an
unjust occasiou to the pannel to escape justice;
itis answered, That such enoneous description
of ph'.ce could in no sense affect the trial, be-
cause tliou:;h such description should not be
proved, it would not vary the case, pnniding
the act of killing w^re proved against the pan-
nel, because such description of place is but a
circnoistaoce immaterial to be proven by the
prosecutor ; but for the reasons above ass)>;i;ned,
liighly material for the punnel to know, ib or-
der Id lay his defbnce before the Court.
It WM in the next place nffeied as a defence
hr ihc pineli That th« rasntauct of the mob
wat 80 grtet, and the attack of the city ^nrd
80 violent against them, in beating, lirnisnig,
and wounding the meif, as has beat above no-
ticed, while ihey were in the lawful ezecstion
of that office, committed In them by hiwful 8S«
thority, that such resistance and attack nmt
have justified the guani, in repelling the vio-
lence of the mob ; since such proceeding is
the i^nard were acted in snpjiort of the due ex-
ecution of the laws, which the onrob wert
highly criminal in disturbing. That ibit ar-
gument as pled for the pannel, was not only
consonant to the rules of reason, but ogreeabM
to sundry judgements and precedents of the
Conrt, particuTarly that hi the year 1^99, it
ap|iears from the tiooks of adjonmal, that Jaiiet
Gordon messenger at the execution of a etp-
tion, did, with many others his assistants, armed
with guns, swords, and other hostile wespossi
shoot several shots, whereby one Alexander
Jack vfhs killed dead upon the spot, amidst sna-
merous crowd, which the al&rm of noise and ts*
malt had drawn tog;eiher, and whereof only
part can be supposed to have come there with
luteution to resist the mcasenger ; ami the said
James Gordon and the others his assi^tanti,bei'Bg
indicted for murder, the lords sustained this de-
fence to him, relet unt to elide the libel simply,
viz. That he, in the execution of a caption,
haven his blazcn di!*played, was bv tbree of
arms hindered to enter the lioiise of iioanmy,
by the persons tuthiii that house, and that
they did threaten and menace the messenger
anil his assistants, an<l that they threatened
to raise the country, and that the country did
accordingly rise, and beset and surround the
messenger, either in the house, or without the
house ; the said country people being armed
with guns, Fnords, and other invasive weapons.
Here your lordsliips perceive, that the Conrt
justified the messeuger in shooting amongst the
mob, and killing ; because the persons in tbe
house forcibly hindered him from entering, ami
threatened and menaced him, lieing armed
with invasive weapons ; and the present easels
more favourable in hehatf of the pannel, who
acted by lawful authority, as well as Gnnlon-Hi
the other case did, and who was sup[N>rttng tbe
execution of the laws, as well as Gordon was ;
with this (liAcrencc upon the side of the pan-
nel, that he was not only hindered and me-
naced in the execution of his duty, but he and
his guard invaded and assaulted, beat, liruised,
and wounded, as has been above- noticed, aod
whereof a strong pi-oof shall l>e brought ; and
that the mob in the present case were not only
armed with, but in their attack u|u>n the guard,
I maile use of, big stones, of two or three pound
weight, which must be allowed to be very in-
vasii^e wea|>ons ; and therefore the nanntr&Bb-
sumes, that the defence otfered fur bim in tbs
present case, is strons^er, and ought rather to
be allowed him, thau that which was snstaincd
to (vordon. Only the pannel must do the jus-
tice to his majesty 's Ad vocat, as to ncknowledge,
that this precedent was not hitherto offered in
tbe dtbats; ]but when tht nscord n ia^ccKd,
g»]
far Murder.
wUt be band \o staiul in tbe procin icrnis u
^^Jtken WH in the rormer il»li*l«, a precedent I
^HUm CiRirt oHV-int, rs b^bIiih tbe paonel, I
^^^■Eb Ibe naaiicl, triili lubmiiision, ap^cbenils ;
^^Hn for liitn, namel; ciptain Wallscc's case, I
■wn lime altpr llie IteTululino. CapUin WbI<
bM WW inili(-t«il in llie 169:^, for hafio^ rc-
foMd in ihe t68U, in dtUtrt up himself, in
obsdiencE to an order of llie preaidenl of the
cMmcil. Mut WTeml jnivy cm an<wl tors, whereof
^^to OBre offictrs ot Male ; and tlie (laillffs of
^^■Bk(trs>h, hsTiiiV ^neiluwD tothri Cannon-
^^Bt( Tvitli a heriiild anil piiraeTant, with their
^^nhi of arnii irii|>lB}e<l, to put the unler of
nMi, esplaio Wallace wooM not Oclirer liim-
n!f a\t, hut retired willi the men under his
■tfaanit la the Ahtiay, and det'eDded himaelf,
A fired Ufion Ilic lAilifls, heraulds, and pur-
'laU i Miot icveral perseni detd upou tbe
b ■!)« nniiad»l a grtBl niaii^ others.
n Jefei'Cc pled titr raplaia Wallare was,
I ttia heepinj; nf tlic AUmy vns comniitled
Ifa by urder of the frif ie council, uliich
Ml otdijred to maiDlaio so loQir ■* ibe imst
JlWIICODimltled lohim; that as to the ui-
ftttjniij council, to deliver up hi« person, it
wMcantmir loan art of parliameulJatneslhe
wMh, w berehy any ^neral warrant, fur pulling
Ike ^rton of nay man in nnrd, eiKcpl where
Mch warrant was signed by lour oHkeix of
MMH, whereof the chancellor, treasurer, or m-
cnttry of iinle to be one. which had n<it been
■rwlited i^ tVDllace'a cutte, was probihiled sod
Mr ba reed.
ba lor'la, afW a rery learned debate, did
II these defeoL-ea to captain Wallace, lir.
tl«D Ike sahhalh niilhl, or aborlly beliire, a
"in eeveral planes, in i-reat nuni-
Rjand thai aeiernl* of them diddeclare lo
I Pateraoii their renulution lu trouble the
d m hU guard, and lo pidige the Abbay,
■-■ *- re^tricl lo an arbiuarv puniahinent.
ur lurdhipa jwrceive, tliat the Court
I prefioiia lolenliou only declared,
I'tbcj troulil trouble the panuel on liii
i, mai piUti^elbeAbbny.BuricienttDnio-
lalbapUDilliment 1 «> ifuilerare the lawi
j4tvtj peraon coin milting boatillly in de-
ie^liit guard: and then ibe lord* suaiaiiied
""wiogdHuncereleranl to elide the libel
- - — allheralJ.lcdld,inatu.
« tnautier, come down Iba Cannon-
t «Hh awnnh and lire anna, and did best
« of the panwd'a ccnlinvti ; and hein^ de-
) to aland, they liotwilhaUuding adianced
■DDcar. Iliul ihepHUrid coidd apeak wilhlhcm ;
and thri br bad deaiicil ihein to remove, or be
at IbMr liiiznrrl, they nnlwilhalanding Ihcreof
Mill [»-r.isi.-.lu> advance.
Tht' a{tjibi'utiini in Ibn pretpnl cam ii my :
The t>"""^' "uiny times exhorted the mob to
atand oO'; not <vilh« Ian ding at which, they alill
|ireBrrl hjkir bim ; lie many limea adi'erli««d
nlhaw of tbrir haxanl ; lbr«iliied tn ftra iipoB
»iftiR>y would nolVerp oH'; hii MDtineli
A. D. iTflfi. [95*
were not only beat, but hruiial and wounded }
all which i« offered to be ptoted.
Another caae was menliuned ia the debate ta
your lordihipa, which atrongly lupporied the
plea of the ptinncl, because it was a jndgemetlt
of your loiiltbipt pronounced but very lately,
after the most aolemu declaration of the Court}
and wherein, the paanel is informed, the CoufH
wB*uiian>moua;and which Jadgement eeewed
to be of that impMlanee, aa to induce iha
ConrI to reverse ihe proreedtngt nf tbe higd
cmirl ot admiraliiy, after aioleiun trial by jurj
in that cuiiri; a verdict teiurned, finding th a
lybel proven, and the defence not proven ; am)
a sentence of death pronounced by ihejiidgeaf
ihe liigh court ofadmirolity.
Tbe case belnrethe admirality was thia; A
corporal and a private cectinel in colonel
Hamilton's regiment were indicted before the
udrotral ler murder; for that they had, upon
the high seas, killed Ili^h Fraaer younger, o(
aca, whereof be instantly died.
I'he defence pled for the pannels, wiia this,
that llie pannels were, by niililary order, ap-
poialed to stiend the officers nf th'e cnitoms m
seizing of gocNls by law maile sei/ahle ; and
that the panncia being in a boat, upon Ihe aeas,
along with the cuitoin- house olficers, in i|uesl
nf such gouda, Ibe person killed iliil came up
with Ihem in another boat, with nihers in oom-
ploy wilh him ; and that Fraser Ihe dpceasrd
jumped into ihe boat, where the pannela and ibe
ciisEom-liouKe ofliccrs wtrc, and cndeavouied to
take bold of Iheir arms ; which was both a
resistance and an attack of the cuslum-huuaa
officers while in the execution of their duly.
Upon the olherhaud, it waa pled agninM th*
panoels, that Fraaer'a jumping into the boat,
waaivilbno inlention to m«ke resist a nee, but
rnlhcr to save liis own life liinn tbe thrusts of
the panned, their pieces having been aimed at
him; thai those in the ciKioiii- house boat
could have no just apprehension of being
mastered liy Itlr. JFraser, he having no invasivv
weapon about him nhateter, and being the
only person whoolfVrdto get into ibecuatom-
house boat, in which then: vtK seteial per-
sons well armed.
Th'jndgenf Ihe high court of admiraliiy ad-
milled of the pauneis' plea, in this nmniier
only, " suslainB ibe defence of self defence pio-
pnncd hy iha pannels, that tbe killing of Ihe
said Hugh Ftsser, by them, or either of them,
wa» in the nvceat^ry deleuce eC their livM, an4
repelled the whole uihiT deOucts ptopouad fui'
Ihe panne k,"
I'be Jury returned lUeJr rerdici, finding the
pannols bclh guilly, art and part, of killing titv
saiil Sir. Fraier ; and finding il not proven, that
Ihe kiOinff of Mr. OniNr was iti Itie necesssrv
defence oT.the paiinels' tii-ra : V poii whiuh let-
diet returned, the .indgv sentenced both Ibk
panncls to be hnngril.
The prooeedingi of the court nf admiraliiy
were laid before your lordsbiiic for a Kvlew,
»55]
10 GEORGE II.
Trial of Captain Porteout,
[968
which, it is believed, is the sinjg^le instance
wherein it was ever contended, that the pro-
oeetlious of the high court ot* admirality in
matters criminal could be reviewed by any
•ther court.
Notwithstanding^ of which, your lord&hjps
were pleased to reverse the sentence of the
judfe admiral ; no doubt, upon supposed error
in ois proceethnjirg ; because the verdict of a
jury, pronounced upon evidence, cannot be re-
versed ; and in consequence of which judg^-
MCDt of your lordships, tlie panneU were set at
liberty.
"Sow the pannel is advised, that such judg^-
Bseat in your lordships could stand upon uq
foundation other than this, viz. That your lord-
tfaips had reversed the jad(|faient of the admiral
as erroneous, in not sustaining this defence to
thepanneb: That they were resisted by 31r.
Fraser deceased, while they the pannels were
in the execution of their duty.
And as the detrrce of resistance oflfered by
Mr. Fraser to the pannels, was by the pannels
themselves maintained to have been no hi^^her
than what has been setfortli (o your lordships ;
the forsaid unanimous jud;;ment of your lord-
ships pronounced after many solemn delibera-
tions, does by conse({uence shi^w, that it was
your lordships unanimous opinion, that a very
small degree of resistance of persons in the exe-
cution of their duty, will justify the persons
resisted in the act of killing the resistor.
And if that was the solemn and unanimous
opiuion of the Court in a case so recent ; must
not such judgment afford a strontr argument to
the pannel, that he and his guard were resisted,
while in the undoubted execution of their duty,
in being beat, wounded, and bruised by an
unruly mob ; who, there was good reason to
apprehend, intended to defeat the execution of
tlie criminal?
To this last case, the pannel met with no
other answer from his majesty^s advocat, but
this, that the pannel cannot plead the benefit of
this case : because he neither does, nor can
aver that the firing proceeding from him or
liis order, was necessary for securing of the exe-
cution of that trust that was committed to him :
his majesty's advocat docs admit, that where a
person has b^^ lawful authority weapons put
uito his hands, to be employed cither in dtfence
of his life, when attacked, or in support of the
execution of the lav\s, or of the property of the
crown, or pro|»erty of the subject; such person
may use those weapons, not only when his own
hie is so far in danger that he cannot probably
escape without making use of them, but also
where there is imminent danger that he may
by violence be disableil to execute his trust :
But withall seems to contend, that the pannel
was under none of those circumstances at the
time he committed the guilt changed upon him
in the indictment ; for that tlie execution of the
criminal was over before the scuflle began, or
any resistance was made to the pannel, and
the guard under his command ; and that being
tbtt case, the pannel can plead no other defence»
than such as might arise from hbUogpit
under the imminent danger of bis fife.
But, with great submission, theie poAioM
of his majesty's advocat are aasnmed withool
any authority, and, as would appear, not ooly
in plain opposition to the laws, but to the nM&y
precedents already ofiercd in behalf of tkt
pannel; for it is hoped it matt bte ndniillcdi
even by my lord advocat binuelf, nod is in-
deed so admitted by him, tliat the pannel was
once in the lawful execution nf his duty, Mid
was obliged at all hazards to support the e
cution of that criminal who wtsi eommitted
to his guard ; surely then, the execution of the
panneJ's duty can never be said to have been
at an end, until once the criminal was folly
executed to death, and as such ordered to m
cut down by lawful authority ; unless it shall
be said that it was the pannePs dnty, tbt
moment the convict was hong up, to let him
instantaneously be cut down, rescned by tbt
mob, and brought to life again ; which seems
to have been their plain intention : lor it ttens
to be confessed upon all hands that there was
dan'^er of a rescue, which seems to have been
the occasion of all this extraord'mai^ appa-
ratus : and for preventing of which it is ad-
mitted, that the whole guard was sent oat with
their pieces loaded, and even with orders to
fire at all ventures in case of such rctGoe.
Was it not then a neceq»ary partof thepund'S
duty to protect and support the eseculion of
the convict, when hangingby thenecfc in tbt
air. until such time as he was cat down by
laifful authority, as supposed fully dead t Aod
it is certain that in answer to the pannel**
message, orders were brought from the bailiili
that he should yet hang a quarter of an boor,
which surely it was the paunel's duty to see
obeyed, ana which orders of the badifis tbt
mob nevertheless did resist, and cut down tba
criminal long before that time was elapsed, and
which the paniiel was in duty bound tooppoee;
and from this contrast, it is offered to be proved,
all the violence in the mob proceeded: outcaa
it be with any justice affirmed, but that tbe
pannel was in the execution of his duty, while
he and his guard were standing upon tbe S|)OC
under arms ? Is not every person in the exe-
cution of his duty while he is either going to,
or coming from any lawful expedition? And
therefore it seems impossible to maintain, bat
that the pannel, and the delnchment under bit
command, wcie in the lawful execution of
their duty, until they had once returned, and
were diii|)ei^e(i and dismissed i'rom dutv, at
which time only they were reduced undc^ a
private rapacity.
And even tiie protection of the hangman,
who had actually received several wounds and
contusions, and was in danger of being tore
to pieces by the mob, was a part of the panuel'i
duty : for thoutrh he is a minister of the law
somewhat oilious ; yet he is a necessary ont
for the society, and lies under a greater ne-
cessity of being protected, from his being so
obnoxious to the resentment of the mob ; and
Jbr Murder^
I hamtnity, mast have sach proftec-
led him, as to defeod him from
I brains koockt out.
len can it be said, in any sense, that
I was in such situation, that he could
i the benefite of self-defence? It is a
lie in self-defence, that a person in-
si retire as far as he can with safety :
X is the case of a city guard (main-
great ezpeuce) that so soon as they
led, they must immediately betake
!8 to their heels, it will be apparent,
are but keept up for very useless
»uDe time the pannel can with great
er, that he is far from being of that
1 of mind, as to be ready to take the
?, which the law might afibnl, against
1 giddy mob; whereof he has given
n many former occasions, as must be
im; and whereof even the present
be an instance in his favours, if he
b justice from the evidence : but with-
must be allowed to observe, that it
! a dangerous position, that a guard
for the maintenance of the peace of
il city of this part of the nation,
y are assembled together upon duty,
\ allowed to plead no higher privi-
i that of self-defence in tue strickest
%
hereas my lord advocate seems only
that a uerson who has weapons nut
ads by lawful authority, for the de-
the property of the crown, or liberty
ibject, may only use these weapons
is in imminent danger of having the
of his trust defeated by violence : if
he case, the execution of duty will
very ticklish point ; and it is appre-
ihat few folk will be fond of it, if
possibly live without it; and of con-
such doctrine must very much dis-
iny persons from offering their ser-
er to the crown or commonwealth,
the supreme executive power is by
tution vested in his sacred majesty,
reign; therefore my lord advocate,
his office, is of council for his ma-
ill causes, will, no doubt, have due
tioo, how far an argument is to
d against the pannel; which, by
Meauence, must tend to weaken, if
t, the execution of the laws.
Duld rather be inclined to think, that
person has the trust of the execution
ws committed to him, the smallest
Mo this trustee, as such, is a |^ilty
a, and that every opposition ot such
iQ is lawful defence, because no man
above the laws ; and the life of the
which the common good is employed,
Iter value than the lives of any one or
if the individuals, and so ought to be
at all perils.
yeity's advocate upon this head, in
uUioo against the pannel, does assume
A. D. 1750. rOM
this fact, that the mob or multitddeasseroMed
at the execution, were behaving themselves
|)eaceably ; and from this seems to draw his
inferences against the pannel, which indeed
will run high enough. The pannel very well
knows, that no order whatever will justifie the
person executing that order, if such order ap*
pears evidently to be unlawful; and yet in
cases which appear doubtful, an order from a
superiour will have its own weight; more
especially in military matters, or such other,
things as resemble them.
But, with submission, this reasoning upon
the mob's being supposed quiet and peaceable
and innocent, is entirely out of the case; for,
as we are now upon relevancy, the facts must
be supposed, and then the argument considered
in that view : and as the pannel does aver, that
he and his guard, while in the execution of
their duty, did meet with strong resistance
frtim the mob, in so much that many of the
men were greatly hurt and bruised: and if
that was the case, it was an unlawful inva*
sion of persons, to whom the execution of the
laws were committed; and so might be by
tj^em, in support of those laws, resented to n
pretty great length ; except it shall be main-
tained, that in the situation of the pannel
and his men were posted, they could plead
no higher privilege than that of self-defence ;
which, with great respect, cannot be main*
tained, but rather seems to be a contradiction ;
because they had not only their own defence
to take care of, but also the defence of the
peace and quiet of this city, and of the exe*
cution of the laws, and that due obedience
was given to them.
In a word, ufMU this head, the pannel'e
argument is not onfy supported from the nature
of the thing, l>ecause a man who 6ghts with
the laws upon his side, fights with great ad*
vantage against those who are fighting against
the laws ; and fur that reason, if a man were
to fight a duel, the laws would be the best
second ; but also, it is believed, that no in-
stance can be given in this country, or in
any other of civilized policy and government,
where a person, proceeding to what extremi-
ties whatever against persons who had assailed
him, while in the due execution of the law^
ever snfiered the pains lybelled.
My lord ailvocat seems to insinuate, as if
the reading of the Riot -Act had been a duty
incumbent upon the pannel, whereby the in-
nocent part of the multitude would have had
time to have taken care of their own safety :
hut then his lordship will be pleased to con-
sider, that no person is by law authorised te
proclaim that act, other than a justice of
peace, sherifi*, mayor, bailiff, or other head
officer ; and no person, under any of these
characters, was left with the unfortunate
pannel ; but he was abandoned and lef^ to
grapple with occurrences in the best manner
his own discretion coidd suggest to him.
But theu the readin^^ of that act could not
answer tht present exigency : for though the
959] 10 GEORGE II.
reading; of tbtt law may pcrliapf sometimes
answer the end for which it was intended,
namely, the pre¥entio||; the demolition of any
hoose or meeting-house ; bat if the nannei,
in the present case, should be supposed bound
to have keep bis hands across for the space of
one hour, after the reading of this act ; then
it is certain that the mob nii^bt bare prevented
tlie execution of the law ra far leas space.
And it is certain, that by the acr, the mob is
not put in contempt, or exposed to the penal-
lies of it, until ouce they continue together
one hour after the readini( thereof.
His majesty's advocat is also pleased to
hint, as if the offering of this plea in liehalf of
the pannd, founded upon the resistance of
the mob, was in some sort inconsistent with
another to be hereafler mentioned for him, viz.
Ilia innocence of the facts : bnt, no doubt, my
lord very well knows, that by the laws of
Scotlami, there is no inconsistency in such
different pleas. And this icads to the consi-
deration of the exculpation offered for the
pannel, arysing from bis innocence of the guilt,
cither of the action, command, or order charged
against him in the indictment.
And in ttie Hrst place, as to such part of the
indictment as charges him with cither having
fired himself, or having given orders to fire,
whereby Charles Husband was killed : tbongh
it is imleed true, that it is impossible, from
ihe nature of the thing, for the pannel to
prove an absolute negative; because, as his
majesty's advocat very justly argues, if the
charge iu the lybel is proven, to witt, that
the pannel either did lire, or ^vc orders to
fire, at tills time iiiiiistclf, no negative evidence
can prevail uv:ainst it ; yet as to this point, the
]»aniiel otfers tu prove, what the lawiers call a
circuuistantiaie iiei^ative, which in a good
measure reso!v€K inio an affirmative, viz. Tiiat
at this time, wlieu CMiarlcs Husband fell, and
gote the wounds charged in the indictment,
whereof il*s siippo>ed he died, the pannel, as
has been above recited, was in the following
situatiun ; that is to say, he was pointing his
{>iece witli his face towards the west port,
Chreatning the mob, that if they would not
keep off, be would lire ; and that nnmediately,
Apon this expression, a private centinel of the
guard came up from behind him, and dis-
charged his piece, by which it will be proven,
Charles Husband received his death wounds ;
because it shall be proven, by persons of un-
doubted veracity, that were hard by the pannel
all the time, that they not only observed, that
he did not fire his own piece, and gave no order
for firing; joined with this other circum-
stance, that no proof will appear, during the
whole scuffle, that ever the pannel made use
of any iireiock, but his own ; and that his
piece, when returned to the guard, was found
4oailed, and in such cnnditiou, that it was even
confessed by the maq^istratos themselves, and
many other«, not to have been fired ; with this
further atklition to exclude that further part of
the charge id the indictment, of tbr pannel's
Trial of Captain PofieouSp
[9GB
having made use at any lime of any oihtt
piece than his own, via. that he carried his
own piece in bis hand tbe whole time, except
during tbe space of prayer above-meniioiicd,
when be gave it to his seirjeaDt: and it shall
also be proved, that there was bat one sbot
fired at this time, at which Charles Hasbsad
is supposed to have received hia death wooadt.
And as to the c»ther dropping shots that an
charged in tiie indictment to have fbUevid
upon this first shot, if from tbe cvideaea ad-
duced, the pannel's proof shall appear la he
most pregnant, tliat be gave no orders lo fire
at this time, then he is not chaigeable with the
consequenoeof such firings.
And thb further circumatance must itioogly
operate in favour of tlie pannel ; to witt, that it
the time of this supposed order to fire, tbe men
were not drawn up in a regular line or band ;
but were either straggling, mixt with the nob,
or in a circular form, surrounding tlie iotlibU
in the Gras^ market, which excludes ail posn-
bility of any supposeil general order to fiie;
nnl«w it be supposed that the pannel was a mad-
man, seeing any compliance with such order
must have led the men to fire each in hisopfKH
site neighbour's breast, anil a great many ialo
that of the pannel.
It is not altogether impossible that the paa-
nd's expression of the word ' fire,' might naft
erroneously induced this fellow that camefran
behind his back (who of himself perhaps was
too forward to embrace such order, had it been
ffiven) to discharge his piece : and if the penoa
firing was guilty of an error, or of a miscoo-
struction of duty, the pannel is not chargeable
therewith ; seeing that every person that bat
the least knowledge of the exercise of arms,
must know, that he is not to receive an order
to fire fi om implication, but from some known
certain ruleof disciphne.
And fur this reason it is, thai the pannel takes
it to be a very wise part of the military institu-
tion, to avoid misconstructions, that no man re-
ceives orders to fire ^especi:»lly when he is rest-
ing or shouldering his arms) but up<in a prece-
dent series of exercise attended with some so-
lemnity, to avoid mistakes ; greater or less in-
deed according to the nature of the occasion.
Sometimes indeed, as was obserred in tbe
debate on the side of his majeity's advocat,
persons will, very justly, fire upon ao abort ad-
veitisement as the tuck of a drum ; but it is be-
lieved, that is never practised, but during tbe
noise or tumult of battle ; when it is supposed
that the voice of verbal order cannot reacn tbe
men ; and then this tuck of the drum, or ww
other signal of firing, must lie previously ad-
vertised to be the signal of such action.
Another thing falls also to be noticed here,
touching this first charge in the indictment,
and which umy be even taken through tba
whole ; that when two or more persona act
nigh together, levelling their pieceaattbaauae
time, it is not easy for the ahaKpeftfj«i etfie-
cially if at any distance, to deterama fieni
what piece the fire proeacded ; juid-of lhia|NiVt
Jor Murder,
auSuty men, best iC4|utii)l*a witti the exercise
vflue unia, can gife Ihe beal micoiiat.
, JkoA tutly, u|ran ihii beail, il>e Iwst conjee-
■|k«liauiielc«iitn^e, is this, that upon Ibis
r"" ""'
Ml
[flow's liriDil, niUioul cilh^r uriler
~ ^« trODi iLe pannel liis coroDaaoiler, the
dn>pi>in2 ihots thai Piisiieil, praceeiJe'l
'Wberrun rdlnws of tbeeuarJ; whoeu-
itf«l tiy tliii flrst examjile, directed anil
Aictiarfeil llieir pieces ag;aiuet sjrh pari of the
tebiBi they resfiectively nupposeil aoy Injury
upon ihern ha<l proaeedeil froni.
Tlie Dexttaalerial circumstance, ciiarg^d Id
4fct IndictiiieDl, ii that, touchhi); the panoel'i
behaviour ot the West- bow ; where it is chtrf;-
«d, Tliat he coniiuaiitled the men to face about,
~ " ' ind that at or about
niisbet or firelock
Itai fire ujion tlie people ; ■
4he Mme time, be lired a t
a band ;
either r
e-lna(]ed,hi«owa piece,
or talien anniher out of the liaud of one of tlie
gtunl ; and that upon this Mcontl example and
mtutnand of ilie pauuel's, several utheri of llie
fWnJ, under bis CoiDmaud, did lire: ubereby
S)B |terKoi iiieniioiied iu the iudicimeat were
Ulkd and nounded.
A* to which I'ftrt uf the charge, the paniiel
•Art the lulloH'ing proof: and iirst, at to or-
der, he.ahall prote by mullitudea of persons
■igb hiin at the time, and nbo ivere qarrowly
fltMTfiDg biiD (nod orders aret^eneraily eiTeu
Viib an audible voice), tbey heard no such or-
der giveu, nor heard no expression of Ibe pan-
nd, that, tty the most remote consequence^
cndd have been interpreted an order to tire:
ud here ibt! pannel's memory, upon Ibe most
Mriuua reflL-ulion, cunoot divine what could
fc«T« (j^ven occasion to any body's conjecturing
thkt.be ^v# ao order to fire at this time. Aud
Krealsii the former ubserralloo fulls to he no-
Bead, touching the solemnity of an order for
ado. Ai to the action of dria^ cliurgcd
Ijpfawt the pannel himself, for finii^ at Ibis
baa; the pannel offers to prove tlie very ceu-
liadi ■■ least, that it w;isiiceiuinel of the|[UBrd,
Vba a>ie ibe Snt lire at this time, which was
am abut at lloberUoti's cloi«-head. And the
yontl i* informed, a* htm been above o«lice<J,
ifcM at tlie time of takinij; the precoguitiqo, an
sStr nae made to the niigiatrales to single out
llielVilow. il' ih«v would nulTer the guard to be
ifrawn out, wbu Areil iliat slivt tiiwiir<ls Rohert-
mn'm c1<i««-bead, by nbicbibetnoor lhn:Lepo»-
,.1'.. CH \...) fufih(r,tbe pannel offers to prove,
I, not only that thin fellour was
11 lint ired, without auy order
i-'l cininulstaDtiuieit, Hs \n ubove
..obyniaDy peisuosofuodouUed
Lii-y could not obuervG the pannel
I ■■ '^t any pi«ae binisell', durintf the
' I <; iliis fii-ing' is supposed Iu hai(^
Vi>d here Ibe pannel could evi-
ii many iocou*i«lenciM lo your
'• iiiiut necessarily be impli^ and
I y'Miui lint stro^iely etduile any
Tor^HmptBtjUi^pitiyL^tby
IhinU be
«\lk.B. I7S6.
time ; but doet not think ii altogellitr t» pru-
dent lo mealion Ibeui at presenL
As to the taking a piece out of anotberinaa'a
hand, and tiring of it, such action ivhs a re-
nurkahle occunr«iioe, and mutt have falUn out
umter observation ; and so Ihe pannel can say
niitbiite about il, but leave i I In evidence, witn
Ihia only observation, thataa it was a notable
event, il will operate almost as strong in the
ue^re as in ibe posiiite. And it must be IfK
to lbs jury to balance the evidence. If a cout
irariety shall appear ; am) to lean h> that side
attended with the greatest credibility, taking;
Ihe known rule of the law into the compau,
nnmely, favour to the pnnnel in case of diitnety.
Only tois observation falla lo be made lo your
lordships, that the circumstances of the case call
aloud for Ihe pannel's being allowed a proof
Upon Ibis part of the iudiclmeDl.
The jiaiinel doea agree with bia majesty's
Advocate, that no ne^tive evidence can take
litife proof; but the pannel humbly
has offered a pretty drcuuuiatiiiaie
uiiE . 4IUU it my Lord Aiirocate seems to admit
Ibe necesMty of a proof on both sides, so the
panuel will not labour that point with your
lordships ; not doubting but you will allow biin
in general, to prove what he can, to exculpate
him from the guilt laid in the indictment j and
ibat your lordships by your inlerloquitur will
allow him as niuch scope in that particular, aa
any precedent of your lordshi|iB' court can an-
tborize. And there are several instances, and
one very particular one, wherein great latitude
was allowed, both as to ihe circumiitauces pra-
cedeut, coacoroitsnl, and even subsequent ta
the acti charged in the indictment.
Some general useful reflections might ba
made, hut Ibis paper is already drawn out \a(a
ton greni length, and as ibe pannel has learned
Judge, and a discerning end candid jury, ihe
less needs be said ; because it is suppiiseil tbey
will naturally oceitr to these inteie«le<l in Ibe
trial ; and no doubt such will lay aside all prB-
Judices and prcpotsesaiuna ; and will neterooce
ibiitk oli but utterly despise Ihe consequencei
of popular rage or vul^r clamour.
If the pannel is guilty of Ibe charge in tba
precise way and manner it la laid agaiDSt him
in the indictment, he is uf opinion miiisdf be
deserves to suffer: but if on tlie olher hand tt
«hall centcoutitliat he is entirely imiocnnt of Iho
hluod ut* lliDse men wherewith be I* charged;
be thiuks bis .cose deserves aiugular cfmuii-
seratiun: because, it' bands and imprison-
ment, toss uf employment and breail, obloquy,
and reproach of bluMl-gullt aud mauocre.aad
of cdQiequeaca loss ol charaoler be cnlaoiities
in human life ; then has he bad a* great «
share ut them aa Ever aUeitdiKl inuocenoe.
Sic Subscril'itur, Ja. Griiunb, Jun,,
Cum* JuftTKUHix, S.D.N. Regis, tenia in
I'rtebirio Durgi de Eilinbuigo, Decimo
sexto Die iUum Julii, Mi1l«>uno ■'^plin-
geuli'siiuutrigeuiuuseslu, perllouurabiles
: >tPihAqdrWRFt«Mwdr>llllWsJlMi-
^6S]
10 OEOftGE II.
darium Clericiim, Dominum Jacobum
Blackenzie de Koystouii, S'Tajgfistruin Da-
▼idem Erskiiie de Dun, DomiDos GualCe-
rum Prin^le de Newliall, et Gilbertum
Eliut dc Miiito, Cominissionarios Juati-
ciarisB dicti 8. D. N. Regis.
Curia legittim^ affirmata.
Iniran^
John Porieous, lately one of the captain
lieuteuauta of the city guard of Edinburgh,
panuel.
Indicted and accused ai in the (brmer Sede-
runt.
The Lords Justice Clerk, and Lords Com-
missioners pf Justiciary, having considered the
indictnetit pursued at the instance of Duncan
Forbes, esquire, his majesty's Advocate, against
John Porteous, jmuuel, with the foregoing de-
bate thereupon, Faiid, That the pannel having
at any of the times and places lilietied, tired a
gun among the people assembled at the execu-
tion libcH^, or having given orders to the sol-
diers under his command to fire ; and there-
upon they the soldiers, or any of them, having,
accordingly fired ; and upon the firiii^f, either
by himself or them, the persons mentioned in
the indictment, or any of them, were killed or
wounded ; or the nannel's being art and part of
any of the forsaid crimes ; all separatim rele-
Taiit to infer the pains of the law : but allowed
the panuel to adduce what evidence be could
with respect to his behaviour at the time the
forsaid crimes are libelled to have been com-
mitted, for taking off the circumstances which
should be brought for inferring his being
guilty, or art and part of ihe crimeti libelled ;
and remitted the pannel and the indietitient aai
found relevant to the knowlcdf^e of an assize.
Sic SubtcribUury Andr. Fletcher, I. P. D.*
The Lords Justice Clerk, and I^ords Com-
missioners of Justiciary, continued the above
diet at the instance of his majesty's Advocate
against captain John Porteous, till Monday
ofAt at seven of the clock in the morning ; and
ordains assysers and witnesses then to attend,
under the pain of law, and the pannel to be
carried bacK to prison.
Curia JusTiciARiiE, S. D. N. Regis, teuta in
Novo Sessionis Domo Burgi de Edin-
burgo, Decimo nono Die Alensis Julii,
Blillesimo septingentesimo trigesimo sex-
to, per Honorabiles Viros, Andream Flet-
* Concerning Interlocutors of Relevancy,
see in this Collection the Cases of James
Stewart, a. D. 1753, and of Nairne and Ogilvy,
JL D. 1705.
It appofrs (New Pari. Hist. vol. 10, p. 201,)
4hat ip the House of Lords, this Interlocutor in
IPortebua^s Case, was censured, as being objec-
tionaUe from (int. al.) " an ^rror or misuke
with regard to the law of Scotland, and indeed
/If evtry ireU rtyulaM society in tlw world.'*
Trial of Captain Porteous^ [961
cher de Milton, Jotticiarium Clcrieaa,
Dominum Jacobum Mackensie d« Roj -
stoun, Magistrum Davideiii Enkinede
Dun, et Dominun\ Gilbertum^ Elk>t de
Miuto, CommissioBarioi Juiticnttis did*
8. D.N.Regis.
Curia legittim^ affirmatm.
Intran*
John Porteous^ lately one of the captaii
lieutenants of the city guard of Edubwghi
pannel,
Indicted and accused as in the foniier Seda-
runts.
ThereaAer the Lorda proceeded te make
choice of the folhming persooa to paaa ■fa
the Assize of the said John Porteous :
Assize.
Sir John Inglis of Cramond.
Alexander Gibson of Pentkiod.
George Halybnrton of Fordell.
James Baird of Chester- ball.
John Hogs^ of Cam bo.
Thomas Dundas of lictbam.
Alex. Brand of Brandsfield.
John Jollie, vintner in Edinburgh*
James Hunter, wright in Edinburgh.
William Wight, baxter there.
John Bell, brewer there.
James Davidson, bookseller there.
David Inglis, merchant there.
Alexander Sharp, merchant there.
Patrick Manderstoun, merchant there.
The above Assize being all lawfully aworn,
and no objection of the law in the contrary.
The pannel, John Porteous, judicially eoo«
fessed, that time and place libelled, the aeveial
persons mentioned in the indictment to have
been killed and wounded, viz. Archibald BaN
lantyne, son to John Ballantyne, the younger,
dyster in Dalkeith ; Margaret Arthur, ^iis
Airth, rcsidenter in the Cannongate, near the
Water-gate thereof; John Anderson, aoo ts
George Anderson in Craighead, drover ; Jna
Peat, servant to James M*Dowal roerebaat
in Edinburgh ; David Wallace, joumey-man
wright in Ed'mburgh ; James Philp, late ser-
vant to Lauder, esq. residenter io the
Cannongate; David Kidd, taylor in Edin-
burgh ; Patrick Spaldan, appi-entice to David
Mitchell jeweller m Edinburgh ; Jamea Lyik,
and Alexander Wallace, both servants to James
Wieht stay maker in Edinburgh ; John Bliller,
taylor in Edinburgh ; David Ogilvie, writer ip
Edinburgh ; and Janoes Nevin, late servant la
William Sellers writer in Edinburgh, now
reaidenter in the Potteraw ; Alexander M'Niel,
son to Edward M'Niel, indweller in Mer*
lounhall; Margaret Gordon scrvaut to Wil-
liam Offilvie, taylor in Saint Mary Wyudy
in Edinburgh ; and Heury Qrahame, tayllf
in .Cannongate ; and Charles Hoaband aei^
rant to Paul Husband, confectioiier in the
abbey ^ Holy-rood-hoote, were an |ulM
J ^y finnff, proceeding rram the
party of the cit^ tfuanl llien under hit com-
OMnd, u roentioaed in ibe indict meiit.
Sic SubKribilur, John i'oKTEcii;*.
Anbr. Fletcuse, 1. P. D.
Hif Mijeitj's Adiocale for proving liii lyltel.
•dduced iFie wiloenc* ■ftcr deponing, tiz '
Jama Drummond, tntTchtnt ind nsideitter
id E'liiiburgli, a^ed tbirty yean, or tben-by,
mmrried, »i>leiiiiily twnrn, purgeil of malice,
MTItal couDcil, examined aud inieimgatrd,
•(poned, tbut time and place libelled, nud after
AMrew Wilson bad hun^ aonie lime upon the
Sllowi, alNiut a qiiartt.'r of an liour, ai the
poneot ibi.iki, be saw Ibe executioner ffoioif
Wf lh« ladder, ai ibe deiioiienl appreliended, '
cut him down ; upim wfiicb he aaw boidc an:
atone* tbrnwn dy ihe mob al llie executioner ;
tome wb«reof ibe ilrjionrnt belieres nii|;lii
fcaTc Tallen umm the ijiinrd : U|ton which hi
ni* the pannel adrance tram the guard weal-
ward, renting hii firelouk unc-n bia thigh, as it'
be had been bending it, and (hereafter saw him
nbe it to hii hreail, innviui; it from one puint
l> another^ and toon ilicrenJtei ibe deponent
fcoard « (bat from the place where (be paunej
Vts (taadiiiE, bul did not obaeric wliclber the
dM crame mun captain Prirleous's firelock ,
ud Diach alwul (he «ainc time ubiiencdonc
•flhe aoldiem gu onl of hit rank nerttward, and
■pon ihe iior(h'Kide, and xaw him go fuither
wen than Ihe place whtre captain Porlrouk
waa } the aide of llie window, where (he ik'pn-
Mul was ■(aiiding in ItoberlBun's house, cover
•4 tin aaid tnldier from the view of the depo
nmt, by the time the first shot was fired ; nnd
whieb soldier had a (fun and a screwed bajon
In bia bund, levelled widi rhe butt end ulit
im brcsM ; and Ihe dpnoncnt did apprehend at
A* lime that captain Forteoua bad fired, be-
ntdiately beard a iho(, and aaw a man in a
hm ffiiuiitci Iberealter, as soon as (be mob
tfapMwd, lyin^r upon (ba alreel, upon a bne
(rbitbcr the deponent caw canlain Porlcoua'ji
plcM dimpled ; and that the above-men-
liaaed auldicr came from the t)ody uf the ^uard
wbich waa behind captDin Porteona. Cnuut
actcn(i« poiel. And ibia ia the truth aa he
IktU anawer to God.
Sk' Sulitcriliil ur, ,1, Dp.ummond.
Andkew Fi,ETr}iEii.
Ki WiUiam Farbet, Adtocat, aged thirty
jmn. w thereby, married, aoletnnly awurn,
^on^ of malice, partial eouncil, examined
U4 lolcmwttled, deponed. That time and place
Bb«llcd,ai)d after t]ie deceaaed Andrew Wilson
bad bung aiNiul twenty or twenlV'fi'e minutes
■fMH ibf^llowa, the deponenMrom a window
im Orr the ttabler'a bouae, upjKwite but a little
blbr wulwanl of the galtowi, aaw Ibe execn-
Ifanter go up tome atepa of the ladder, as the
iepmniilielierM.tacuidnwa the BBid deceased,
and aaw ibvreiipoa atones thrown at (he execu-
JtOft i upon wliich tlia mtauiioaet imniadi-
A.D. IT36.
Btely retired tii (he guard, and the mob coafi-
nucd throwing of atones ; bo tliat the depoueat
does beliere some of tlie stones might ba»
touched the guard ; and about tlna tiinu the
guard were drawing togrtber tu the norlli and
Meat of the galluHs, where the captain was
siaading, and did soon (hereafter lee (lie paniiel
Bilvancing westward fire his gun among th«
people asicnibled at the execution ; and ofa*
serted the fire and smoak issuing out of iba
inuzzte of his piece, tu ihe best at Ibe depo-
nent'd obserratioD ; which be thought at lb*
lime very distinct, and that Ihe saiif shot naa
tbe first which Ibe depoucut beard ; and tba
deponent at the time did imagine, that ibe
paunet had fired bia shot high ; bat whether
that pivceeded from tlie siluation that bis fire-
lock wai in, or from tbe appearance thai tha
tire and smuak made that issued outof hispiecv,
llie deponent cannot now particularly charge
hii memory. That Ih^real'ler the dep(iueut
beard aereral dropping shots, about tHenl\,
but cannot be positive as to tbe number ; that
vrheii the aforesaid lacta happened, the deponriit
nas upon tbe auuth-iide of the alreel, and itie
pannel to the north of the middle of thetliveT,
almost opposite lu the window where Ibe de-
ponent waa ; and h hen the pannel m> fired, tba
deponent did not obaerTe any soldier ao far ad>
Fnnced westward from Ihe body of (be guaitlaa
the pannel was. Causa icienlia puiet. And
(hi* is the truth aa he aball answer to God.
Sic Subicrihilur, ViiLUXit FcinnEa.
Andrew Fletchhi,
Mr. William F/aKr, son to tbe loril SiiKonn,
aged (iventy- four yean, or thereby, unmarried,
solemnly sworn, pui^ipd of malice, partial
ciinncil, examined and iuteiTOgaled, denoncil.
That l|e wa* in a window in one Orr'a iiniite,
in the Grasa-market, the aouib-side of iha
tlreet, that day that Andrew Wilson waa exe-
cute; that afler Wilson had hung some tin*
the gallows, he saw the executioner gu up
ne step* of the ladder, ai be apprehended, to
: him down ; and then saw the mob throw
nea and dirt at bim; upon which the h an ^-
a came down and went in amougst tb«
dierathat weie standing at the foot of tbe
scaffold : that soon after the banguiao bad
— ac down, he saw the pannel present and letcl
gun. mnring the muzzle to nod fro, and
then taw him Are; and to the best ofbi* know-
ledge or apprehension, *aw the NiaOak issue
ml of the mouth of the piece ; that ioiiuedl-
itely thereaiW, within a second or two, ba
heard several dropping shots fired by tha
;er^, who were there on their arm* ; that
hioka the dropping shots lie then heard
came from near the place where the pannel wu
itanding.
Anil demined, That at the (ime fonaid lfa«
jiaiinel fii'^ liia gun, be did not observe any <if
the anldjria advance bribrc htm and prespnC
(heir gnus. Cauin %ri<nlia pultl. And tbis is
truth at be aball ansMer lo C^.
Su fivhcribitiir. WlLtTAM Fnitla.
lO'GGORGB n.
9OT3
Mr. Witliam Vrguhart of Hdilra
IliirtT-right yean, or thereby,
. -o- j-^-, -J, — rried, m>-
letonly urorn, pureed of nialice,^rtial miiD-
cil, exatnined ■nil mtcrrogaled, deponeJ, Thit
lie WM present at Andrew WiUon's execnlion
Ibe time libelled, in the house of one Orr, on
the south-side of the street, in company with
■ir Wiliiani Forbes and Mr. Fnser, the pre-
flfeding' witnesses ; thit after Wilson had hunf
gmae time, he saw ibe executioner go up some
■tepi of the ladder, in order to cut him down,
Bs he apprehend^, and saw the mob throw se-
reral stones at him ; npoa which he came
down, therefore tbe mob continued tu throw
stones, some of which fdl among the f^^uard ;
whereupon he heard sereral drojiping; shotB
flred by the soldiers ; that he saw the paiinel
present his piece, immediately heart) a shot,
which he apprehended was shot by the panur),
but did not wserre it so narrowly us lo see the
■moak or fire inue out of his piece. Gaum
$cinti* patel. And Ibis is- the truth as he
ihatl answer to (lod.
Sic Snbieribilar, Wilmam Urqvhjirt.
Jk. Mackenzte.
Jama Demar of Vo^rie, ao«d aixty'fiMiT
ynrSi or thereby, marned, solemnly sworn,
purged of malice, partial council, examined and
unorogaied, deponed. That time and place li-
filled, at Andrew Wilson's execatian, he was
in B window in his own bouse at the foot of the
West-botr,iti tbeeBt^«ideaf the way; that he
•aw the hanirmaii eo up some steps of the lad-
der, after Wilson nad hung some time ; and
■aw the mob throw some stones, one of which
hart the executioner on the ftce ; npon which
he came down the ladder ; whereupon he Mw
the pannel present his piece and fire, which
was the first shot he heard or saw ; that when
ha saw tbe panoel fire, his ude was to the de-
ponent, and that the pannel was then ■tondinit
on the east-side of the gibbet ; and that he
fired his piecatothe west: anddepoued, besaw
the fire M the powder from tbe pan, slid heard
the t^rart of the shot. Depooe*, That wlien
tbe pannel Sred, as albr&iud, he was sraiidinf
on the sontb-easi side of the scaffold. De|Kiaed,
That Wilson was cut down not by the hang-
nao, but by some that were standing at the foot
oftbe gallows, and that Wilson was cut down
befor* be beanl any aliols : Deponed, That he
atuod at his owo window before Wilson was
shoM as before mentioned. And bejoginterro-
sated what kind of cloatha captain Tnrteoiu
had then on, declares be cannot be positive,
botbelierea they werered cloalhs; butispu-
AliTe tha Ibe knew captain Porteout' lace nlieo
he saw him Rre. Cauta iCMntM paltt. And
this is ihc truth as be shall answer to Coi.
Sk Smhcribiiur, Jahcs Dewar.
J A. ftlACKENSIE.
Ctargt Drmmmcmd, eaq. wm of Ibe cnmtnii
MBmn of Ibe oostamas, tgui yaan, or
' !, mmM, wtoouily ■won, pugcd of
Tritd ^Ct^ain Porteoui, [90B
c, partial coundl, examined BBd hteiio-
I, deponed, that at the time and alaee tt-
belled, Ihe deponent was in the houae of BsiK*
Halybiirton on the right bsnd, on Ibaaortb
tide of the comer of the Strait-bow, tbe thiid-
ttory, at the time of the exrcution of Andnw
Wilson, and from a window of theaaid boM^
after tbe criminal was thrown over, and ba4
tiung for fifteen or nxtecn minutes, tbeoaea-
lioner was about going np the tedder; andaftsr
reral stones thrown atbim; which madahia
return; and while he was on the gronad, bs
ohserred his nose blooding: and »t thiatoa
' lerved one or two persons or more sUbJ*
tbe foot of tha fallows } one of wbiB
itrelching up his arm with a kalfe, fae ol
t the
; the
iiWfVC
of stODLf to continne, and some of tbem M
nmone the soldiers. Deponed, that ironidi-
utely tliereafler be obserrcd one of tbe anldiiil
advance a little beforv BIr. PorteoiM to lb«
westward, uith a gun in his hand, wbick ha
presented ; and immediately thereopM tbs
deponent heard a shot, which be imaginsd la
be from that soldier, but did notobaerrelbasr
imoak; though at Ihe time he condilded it
was from that sotdier'a gon, and ia podtin
that that was (be first shot that waa 6iied ; sed
the depouetit did not ihiuk iliat Ihe stones Ihst
were tnrown dkl give any just cause fin iba
firing, Depoued, Ihut about the lime wbot
he oSserred the KolJier present his guntasssi'
ia, he also obserred the pannel holding his gne
in his hand in a lereii but ia not pure of his
putting llie butt of it to bin shoulder. De-
poned, ihat after the saiil lirst shot, wiibin a
minuie he beatd anolhcr, and so it coolinoed
till about tbe number oi eighteen or iweoly;
and this vras at the lime of the firing obstned
by the deponent; but wiiliiu some miautsi
Ihereafler, iliere was a second firing, which ba
did hear, and upon hearing came to the wia-
doiv, and observed sonic lime fallen from sa
opiwsile hoiije, which he Juilged to have ban
occasioned bj- the hulkls ; And as lo Ibe eisb-
teeu or twenly dropping slints, in the Anl
tiring, they were from tbe soldiers immedialdy
behind tiie pannel, betwixt wliom and them, bs
observed no person interposed ; and heohoervcd
the time of the first shot the paonel's face wu
looking westward, as was all the ooldicis' be-
hind him. Deponed, that the soldiet* at tbit
timo, who firod, were lo ihe deponent's best n-
membrance to the nortbwejdof tbeaeaAU;
and the pannel was then, lo ifae beet of his i*-
membriiDce, either upon a line to the gibbet, sr
a little neslward of it. Further deponed, IM
ifae soldier who first fired, as said ia, advoiieid
from behind the psunel, and past uponfaia right
hand to the northward c^ him. Cokm tcimtHI
patel. And this is tbetrutli as he shall onewM
to God.
ak 5ii»(crtUtKr, 1736. Gb. ;
Do.
Jm Mwrdfr.
■•VfUkamJohnttou*, dnq^Mi in E<]inbiir(>h,
ag«d fiMI]> ]i«irB. or lliereby, mtnieil, tn-
' '- iwm-n,inir^il«f Nialwcpariialeoiiiicit,
4 tuii) iDWrmgnud, drponeit, time aoJ
B libelled, he th« (le)Minmit being ]ir««t»it at
"mof Andrew Wilton, liedtilubtfrre
akea {funout of ■•ulitivr'* huul.at
(l time he TCM itanding twin tlie Com-
•M and niw Tnd's ihop, which is under
I Ualybirrton'i houie ; Ihtrenpon he oli-
•tn»il ilie panbeladfaiice EUtnesteiis westward,
m4 did Ke him prewnt ami l«*el liiB gUD, Ihat
■ W ny, lioid it onl and lire amnnest the mul-
littHbii aniT did obKne the »rooak come out
•fthe^ni Aud depuneil, that this was the
fcR allot he heard, which shut imme<)iately
IaU0W«d after the criminal was cut dnwn l>y a
Innil stancliDg at the Toot ol' the gihbel; and
tka dcponeal at the liroe wa> Blandiiig in a
Wtadoir hi llie house ut' one Gainlner. home-
btviarby the Mu>re Well; and wbvn lhe|>annel
was taking llie gun out of the soldier 'a hauil, he
■nearsd to be iii itaition, and it was some
•bnrt liiiie belifre he was ntaslerof the |;un.
DipMMd, tliat til ttie bmi »r lii-i reniembraace
tba pannel was cloatheil in red, hut he hetng
wdl aoquaiolal with the (laiinerg tboe, he is
plMw, tliai lie wuB Ihi? person Ibat look the
ri aad Qrad ai ulbrsaid. And de|ioned, thai
batiaves itn're wan about tliinjr yards ilis-
taaee belwixi ihe ninduw where ihc deponent
WIS, atiil the paonel, at the first tiring. Cai
•rkafitf patet. And lliis is the truth as
ikaU visww lu Uml.
Sic HabstribUur, Wm. Juiinstoun.
Da. Ermkine.
ilmrk Spmit, sbinMr, and one nl' the c<
^bka ol Edinburgh, sgH as yeura,
Aarefcj, nwrried, saleinoiy swotn, purgeil of
Mafioa, |H)rlial counail, examined aud inlerro-
rid, de|m<ied. That time and pisce hbelled, as
■Uwd oil WiiliBin Itrr slahler's window,
anulh -aide oflbe Grass- ntercale, ha tiaw Ullion
the criminal cut down from the gibbet: upon
Nbieh fcoaaion he did not obserre lliat tijere
Via aoy ({realer dislarbaaee than usual al exe-
•BliOMf that a very little while after the eri-
■■mI tras so cut down, he ohserfed the pnnnel
■iHDoe before the soldiera, anil upon the norlb>
■Uaof Ike acftffbld oTer-aguiiisi the ).'ilibet, he
W Imvi flre his piece towards itie west, and
ikfraaioak iaueout nl' the mouth of hisirun ;
Ihia he says was the 6nt sbul that was fired ;
b« tmBMJislely, upon the liock nf thai, a tall
»■■ with hia own hair, aUint the third bebinil
iIm paniM-l, as he thinks, Ored off his piece
Kfcvwiae inwards ihc west, but up in the air
•Mr llie hod) or the multilude: Ibat rery
■nan after Mveral other dropptag nhols Ibl-
btrad, after which when ibe people fell hack
•■d apanird, he ohserTed a vuuri^ man lying
■pan Ike ffraund b« dtad, directly opposiie to
Ika fla«e where the pannel llred. Cnuio
tntxlinpatti. A nd this is the truth n« he shall
WMrioGmt.
Si* SufccritifHr, Minx Si^orr.
CiLa. Ei.ivt.
A. D. irse,
GtorgtCampbttl. Wright in Bdmban;h, IgM'
SS years, or thereby, married, suleninl* sworn;
poTged of maUce, partial coimdi. enannned and
iBtcrrogaleri, deponed, That time and p1ac« li.
bollMl, Ihedsponentiitood in the window nf Mr.
Carmichael'b house, iu the south-aide of the
GraM-n]erGMe,direcl>voppcmielo (be gibbet;
ttiala rery httle after Wilson was rut down, b«
nbserrtd the pannel with four or flf e nf his men
shout him, and (hat as hepoinied hia piecelo anA
fru towards the inutlilude, he obierced him n-
him; upon which he immediately Tired hia
piece; but whether this was the hrst shot or
Dot, the deponent cnunot letl, for there waa
three or fnurfired much about the same time;
but ihat the paonel fired, he is sure, for he sair
fire and snraak issue from his piece, "nint
open these shots alrendv meDliuped, he saw a
man fall down opoA hi« hark on lhe>treel.-
that afier this he saw the paunel raise his mus'
het, and put bis hand to his earl rage- biix, as if
he inieoded to load again ; but does not know
what tbilowcd u|»hi ihif, because he imme*
dialely tost sight of him, Deponed, That
when the patinel Cirud his piece at uhore, he
wot daiiding towards the south easi corner
of the scaffuld, and p'linled bis piece toward)
(he south-wett: that the ptnn el's tire, with
the shots that went off at ibe »ame lime, wer*
the fitsl that were made on Ihat occasion,
Cauta identia patet. And (his is Ihelrulh as
he shall auiner to God.
Sic Subicribiiur, Ctaaat CamPBiLL,
G\LB. £U0T.
James Buld, merchant to Edinburgh, age^
;i3yc«rii, or (hereby, widower, sotemidy sworn,
purged of malice, psilinl coudrtl, eiamineil
and interrogated, drpancd. That liriir and place
libelleit, the deponent stirud in the tame window
with Ihc iniuipdiate iirecvding wiinesa, or al
least in a window in ibesame tiHim: (hot a lit-
tle after Wilwm was cut down frnin the gibbet,
he saw the |iannd advance a Il<i1e westwanl
from the Corn-mercate, (owards thcsnulh-side
of the gibbet, and fire off his piece we»t.ward,
toward the Mute Well ; that at this lime he
< saw none of* the soldiers near him, nni- observed
I any ether Hre but his ; and before Ihere waa
I any more firing, when the miOtiliidc fell back,
hesaw a man lvin:{ dead, inwards ihe placo
Ihat the panDcl painted his luecp; that he is
sure the captain fired, since he mtt llic lire and
smouk issue I'tom bis pi«c«. Cunnt K-wnti«
pa(rt. And iliis is tlie truth as h« shall au-
0 0<h1.
Sk Sulifriiiliir,
Jiinu Btui,
Andrew Dtiw, tcrrnnt to James BTonlgn"-
mery, brewar io Potteraw, ageil ¥1 years. «r
(hereby, niarried, s<ileinnly BWotB. p'nrged «f'
malice, partial coiKieil, exnmiocil and inti'rrn-
gnted, deponed, 'I'tiat time and phicn 1ibelli-d.
■ he deponent was standing allhctiiotuf Rd'>
beitam the itubler'a cloti, wLtm Wilion wA
975] 10 QEORȣ II.
tba scaffnld, alniit Ira j'Bril* from it, o?er-
■niatttfaemittdleof llieactfTuld: »nd depoDed,
Tw Ihe paontl'a sliot at tbat tio«o waa tfu first
lie beard Ibeo iibut. Depuued^.That be was
present ftt tbe time rrura^VilMu'M^coining down
to bit exeuutiun, till alter he wis cut douro and
MttntUt pattt, AdiI tbia ia tM truth u b«
should ODBirer lo Gnd.
Sie Suburibilur, Jauu H^xnELL.
Ja. SIackenzib.
William Doiiglai, one of the aoldiera in the
oily guard, Edinbur^b, aged 47 yean, or there-
by, marriej, aolemiilyiwani, purged of. malice,
uorlui council, exaniiiied aad iDlemgaled, de-
pMied, That the time aud place libelled, m the
•lecutionet vu goiog up tbe Udder to out
down WilMn, ihere were several atODcstbrowD
■I bim, which obliged bim to come down the
JwUer ; at the aane time tliero wat acTeral
alODes thrown amongst tlis guard, betbre Wil-
■OB waa cult down, at which lime he heard the
Cn«l iay to the soldiera. Be daVno'd to you,
gara, fire ; after wbicb he heard aeveral
^ats fired by th; men, but koowa nolbiog of
Ibe pannd'a Laving fired ; and that theae were
' tbe fint shots he heard Gred that day, to the
|)eat of bb knowledge. Depuned, Tbat the
panne), when be uttered the words berure-men-
liooedi was elandiiig at the south sule of the
KUewB. Deponed, That the first shots were
nl before nilson was cut down, aod likewise
■ome of tbem thereafter. Ca^na icientia pnttl.
And this is the truth aa be should answer to
God ; and declares lie cannot wrhe.
.%. SuliKiibilur, Ja. Mackenzie.
jFtkibalii Fctfj, Ulster in the abbay oflloly-
rood-bouse, aged 48 years, or thereby-, married,
■oleninly sivorn, purged of muilce, partial
council, examined and interrogated, deponed,
Tbat the liiue and place libelled, a little after
Wilson was cutt donn from the galliiws, he |
aaw the pannel fire his piece among the niul' '
liiuite ; and immediately bfard him say to bis I
men, Levellyour |)ieces,arij lire and be daniii'd !
Whereufon there ncre a great many sliots
^ed by tbem, and saw the [loiincl take a gun
from one uf the men, whicb he tbe paimcl
fired. Deponed, That be the deponent Has
within liv yenrdsof llie pannel when be iircd,
and spoke the words betbre- mentioned. Ue-
poned. That at tbe time when the pannel took
tbe gun from the soldier, he laid his own ujiou
tlie scafiuld, and tbat there were some persona,
but very few, then standing upon the scafiuld.
Deponed, Tbat iKtwixt tbe lime that the pan-
ncll fired bis own piece, and bit taking the gun
from thesiddier, as aforesaid, it mijjbt he about
e^ht or uiiie minutes : And deponed. That at
the time be tireil tbe Bccond guii, there were
■sreral other guns fired at tbe attme time. De-
pODoa, That there was do shot fired before the
littf fired by the pannel i and ib>t tbcMcand
ahot 0rBi|„by tlio pcnnal wh mw tb* mau
plaoe irhaw tw firwUba ftm < mwI tIpt.Jw jmt
Trial ^O^taiit Poricout, [BTI
not taoved above aix or seven yeirds btfnil
Ibe first firing and the second ; ■addutam
oT the soUiem followed tbe panpel in Ibat space,
and returoed with him again 4o tbe pbM
where he fired firaL Causa seuntM ^ct>
And tbia ia tbe truUi as he aball answer to God.
Sie Suttcribitur, Abcbuub Ymi.
Ja. HacuxttL
WiWam Murray, barrowmso and indwtlkl
in Edinbg^, aged ST yeara, or thereby, imr-
ried, solemnly sworn, purged ofinalioc, paitid
conncil, ezaniued and interrogalMd, dcM^
Time and place libelM. the depoMK M«
prMenI at the cxeculian of Andrew W3M^ m
did obaerve two of the soUims iindw the pM>
nel'scMnmand, fire their gaaa; bM ihagws
were firvdun in the airs tMnahar beobnrtsi
tbe pannel fire his gan wnongat the BBltitadti
whereupon be ofaurvednbuy drop down, aal
did bear the pannri caU oat to the aolMi^
Damn them lor bongan, why did they art
fire even forward, and ctean tbn itteaif it
which time the depoiient waa
the south pillar of the Cmn- ,
twenty yards dialaaca froni the vuaeli h be
apprebends: Farther deponed, IhatafWths
said Gmt firing, ha obemed Ihe psmal Idtt a
directing it towards a tnan be ,
which he did thirty or forty yearda ;' and na
firing, he observed the perMn so pUTMad, M
donn: And being intermgated bowMBC hh
pmeotdulocaa of bearing remained wiihliH;
deponed, be has been as dull of hearing thai
seven years past Deponed, IhnI the IwosbMi
from tbe two sukli^rs were tbe first firing hi
heard npon that occasion. Cavw srinlia
jiatcl. And this is the truth as he shall aosvtt
to God.
Sic Suburibitur, William MnaaiT.
Da. EasKiNK
Jamet Kicoll, watcb-mskor inCnnnm-gtls,
iged 36 yean, or thereby, marriod, solenudj
sn'om, purgf-d of malice, partial council, eis-
mined and interrogated, deponed, Tbat he "ts
present, time and place libelled, at tbe enca-
tiun of Audrew IVilsun; aud then he did ob-
serre the pannel fire his ij'ud, holding it oal
straight betbre him, amougat the muliitads
there assembled ; and as be beard tbe repMi
uf the gun, su be obserred tbe smoak af the
powder coming from the gun ; and tbiasbol
was the first be liesnl upon that occasion ; and
Ihe pannel when he thus fired, was staDdinf
betwixt the gibbet and one lUr, Cunnyohanie's
sbopeonllie north side of tbe street nearibt
north east eud uf the scalfnld. C'uuui kii'sIw
patet. And tbia is the truth as he shall answer
toGud.
Sie SubicribUurt JufEs Nirau.
Da. Ebsum.
Wil/iam JamaoH, merchant in Ediabnifh.
aged 34 years, man-lad, solemnly n*nm,pW'
ged of malice, partial oouadl, enwiafd ad
iBtBnpntad, daptmed. Thai ha «w |>mb4
S773
Jir Murder.
time aid pitee libcHH, at the exMutioa of
AmlrciT WiIhid ; and about the lime wlien they
were cutting (loni) the criiaiiia], the depnneiit
iheB •tandisgf wilhin three or four jeajdi at
■he pannel, dlJ bfur him tfitt ordera to the
■obiim iliai trere Ix'hiuH hiu tit liret and im-
medialcly ih;rcuri-r he did liear the panocl
fire the qau that Mai id his own band ; uid
upon Ills tirtiiff, ohnerTcd thn siiioak of (lie
poivdrr I.-0II1C from it; theiiaftcr heobserrcd
At paiinel take a ^nn from one ul' the snldiera,
bat wiiat ute he miulc iJierrnr, he kiiowi iiol;
ami it wat jery altutt lime 'twixi the pniiDel'^
frtB|{, and hia taKint^ the nan fmm theanldier,
•I abo, m *erj ulinrt disliuicc lietwixt thi; plaee
wtanv be (irerl, anil wliere he f>ok llm will
gnn; theplarcul' iiia firiii»', to the ite|iiincDt'g
■Mmory, beinir acta to Itobcrlson's Clos^bead ;
ami «h«re he took the g\in, nas a rery little
m; up the (Irret rroinil: And ilis Bhollif
keard rrom the pannel's gtin, wbi the lintt be
fceanl that day. Caum leicniU paid. Atid
Ihu ia the iTUlh un lie •ball ansirer lu tiod.
Sk Subitribitur, Viiu.u't Javbson,
Itt. Emkinr.
JUm Meffht, Imxt'r, and acrveat in the com-
kMO bake-lii>use in llaslimdoss in Ediiitiurgh,
ifti 86 yean, or thercly, married, solemnly
■worn, pur^ced ui' niulire, partial uoiiucil, eMi-
mincd sod iiitBrrot,'^ ted, deponed, Tiiat nt the
time aoil place Ithelleil, Ate deponent nas stand-
ing ID 3Ir. Urr'it dour, on ilie i>auiti side of the
GraH-mercate ; and Knnie ■ihi)rt time atter
Wilaon iraa cut donn, he aaw Ihc panni-l tiike
• pin out of one uf the coldier's band, beliire
Mr. Todd'a ihnpe duor, wliich he immediately
fired off tnwardii ihu norlli-ncst ; a Utile Mure
«bicb the de^innent saw bim fire hit nn n ffun
'" ' '' ' le place ; that iipnTi the captain'
Bring, the deinineiit saw soi
whw atiNiil betiiiiil the Coin-
niLTcatc, fire Iheir
(wvr to God.
JmIN Alot'FAT,
Gius. £uuT.
John Slevarl, merchant in Ed'mlnirgh, a^d
90 yeara, or ttirreby, unmarried, tolemDiy
■worn, ptirgal uf maliee, pariial council, rxa-
■ined and inlcrrosattd, dijirined. That at the
time aii'l place Ijl-elkit, tlic dc|H)neut was
Mandiiii; id a TTinilaiv of \\ ir.e (iardcn's linuae,
en the ai<u;h-»i<le of the •:cail'iild : that Mmc
■hart lime liefure >Vitson mai cut dui«n, upon
■•me Monfi bcinif throivi) ot the hangman, he
abarrteil the pannel jump down from the siuilh-
■ide of the walfold, and walk up Initikly to-
ward* the place uliere the disitiirbaiice was,
but nothing hi hia hand but a cane; imme-
dialrly alter lliia ^V'ilion was cut down ; upiin
whirb the gtiard Ihat atlciiilcd the txeciitinn,
fccgmii to march npth^ Bow ; tinil that at the
winh-weat cnmrr uf the gallius, hcolncrvcd
Aa pwiDel take a ^un mil uf i soldirr'N band,
Vidi wkieh be pushed back the muUitinlc ;
^4 Am wfacK inc paoncl came the tCLi};i!i ot*
lUBrnJiiM, beiiHr uiiuD tbi rear of hia men,
A.D. 17M. [97S
he law him receire a atrake with a atone ; upnn
which he auddenly turned abnut, aud wared
hia piece to and again, towards the multiliidf,
bat nitbuut &riiig ; but a very little aflpr tlial,
he turned about all at once, and stnpped aoiiie
stepa forward, and fired off bii piece towards
the crowd westward : Ihat this was the first
shot nliicb the deponent either hcant or saw
made lliat diiy. Vauta icientia yatet. And
this is the truth aa he abuuld answer to God.
Sic SuhaiLitur, Jno. Stewart.
J.ihn Cibb, cow-fccdtr in Cannon^'ate, aged
11 .vara, or thereby, married, aolernnly aworu,
piiilfcd of malice, partial couucil, examined and
interrogated, depniicd, that lime and place 1i<
belled, he was standing at Mr. Robcnaon'*
cluBs-hrail, in ibc Graas-market; Ihat a very
lililc atlcr the haiif^man bad Im:cu on the ladder,
as he lLijii|;bi, lu nit doivn Wilson, he obserTeJ
■he par.nel with his g'lin in his hand, adiance
inwards the cru»d, where the disturbance waa,
and present liis piece three tiinra ; the last of
which times, the drpnncnl thoaght be Hrcd her
off; for be aaw tlie primine burn in the pan,
but could not ace tin: fiery smoak at the mnK-
zel, because of the crowd; neither conid ha
with certainty distinguish the report, lieeauM
several other pieces were fired olf at the aain*
time : that upon tlieso pieces being ao fired, ha
saiv one Mr. Niel drop doivn at the Muaa
Well : that before the flring abovettieutiuned,
lie neither heanl nor saw a sliot made that day.
Cauia leienli* palei. And thin is the Inilh aa
he ihall answer 10 God.
Sic Subicribitur, Joint GiBn.
(iiLB. Eliot.
Edinburgh, aged
SO yeara, or lliercby, married, satenmly aworU)
George Smeilon, *
purged of malice, parlhil council, examined
aiid interrogated, deponed, Ihat lime and place
lilielled, lie was present at the execution of
Wiltnn : that when the executioner was dning
hisduly, be aaw captniii I'orteoas come off the
scnffdkl, hetnusc the nm!) was crowding upon
the guard; and while the pannel wasendea-
loining to Iti-ep ofl" the miib, he saw a man
with a silk n.-ipkinc about his neck, pre»s iipnu
ihe pannel, and stem to cndeavonr to grccp at ;
■ but that n younj gentleman there, in green
I clonlhs, kcept Litn'od': and then the puiiiBl
1 CKturncd to the sinlfuld ; but abiuit the time
the criminal was cutting down, or lo be cut
down, the parnel ivrnt off the scafTnld agaia;
I and alKiiit that lime there wa-i aloncs thrown Uy
' the moh at the hani.'ii>r.(i, and the guard ; koA
I some nfthem fell nui'-iig^t ibc guard : That s-i
I far as the deponent lonid ob-ervo, being \mn
■ a l>anixinc, upon the 'inith si-lc i.f tbo S(.-»fiJ,>,l
' five storv Uiuli, ihc st.inea setmed to bv M^rt-
■ Inrgc, but tliR deponent cannot tell ttic iVi-r-
' lioii" ; and then he sunn olifPTved n s^if .^ %
I was the fli>l Ihat he observed, snfl c,^,;, . ,;..
j nit
979]
10 GEORGE IL
Trial of Captain Parieouif
[950
one of the soldiers ; and this shot was after the
criminal was cut down ; and aAer this shot, in
a very little followed three or four other shots ;
and at this time the pannel had his piece pre-
sented towards the multitude ; and that be saw
tlie flash of the pan of the soldier's gun that
fired the first shot. Deponed, that the pannel
was pretty near the soldier that fired the first
gun. Causa scientia patet. And this is the
truth as he should answer to God.
Sic SubscribUur, Geo. SsiErroN.
^Va. Prinule.
Thomas Harton^ doctor in the regim^t of
IVelsli fuzieleers, iu the Cannon -giite, aged
d9 years, or thereby, unmarried, solemnly
■worn, purq^ed of malice, partial council, exa-
mined and interrogated, deponed, time and
place libelled, he was present at the execution
of Wilson, when he saw several stones thrown
by the mob at the guard, of such bigness, that
was sufficient to have killed them, in case they
bad hitt them in a proper place ; which con-
tinued some little time. Deponed, that while
the* criminal was banging upon the gallows,
the deponent saw a man press towards the pan-
nel; and being come near him, he held up his
hand^to him, ju a threatning manner ; but the
deponent did not hear what words be uttered.
Deponed, that when the pannel was upon the
scafibld, be had no gun in bis hand ; but when
he came off again, he took a gun from a sol*
dier. Deponed, that when the pannel came off
the scaffold, he went altout to the west- side,
and turned about towards the north, endeavour-
ing to get bis men together, which he could
not weel do, they being so much interspersed
ivith the mob; and tney continuing Ktill to
throw the stones, the pannel turned about with
his face towards the west; and having his
fuzie in such a manner in his hand, as if he had
not designed to fire, but waving it from side (o
fide, rather speming to intimidaU: them : Ami
et this time there was a soldier came upon his
right hand, and fired close by the pannel ; and
this was the first shot the deponent obserifd:
And deponed, that he had his eyes strictly u{mn
the pannel all this time. Deponeil, he did not
tee the pannel fire ; and ho iii very well as-
tured, that he did not fiie aMhattmic. De-
poned, that this shot was immirdiatcly after the
criminal was cut down. Deponed, that after
this, the pannel endeavoured to carry ofV his
men. Deponed, that the soMier that'cauie up
by the pannePs ri<^ht sidf>, canie up I'runi be-
hind him. Causa hi'iintiit putct. And this is
the truth as he should answer to God.
Hie Siibccribilur, Tiio. IlAnioN.
Wa. PillNOLE.
David Rannie^ merchant in E«linburf>li,
©ged '10 ye*Ms, or thereby, married, soUuinly
De war's at the foot of the Uuw, saw the pannel
draw off his luvu, and maruhiug up th« Bow,
halt at baillie Crocket's shop, at which timetbe
deponent heard some soldiers fire, which the de-
ponent apprehended was in the rear ; the de-
ponent looking upwards, and thejr that fiml
not being under bis eye. Causa setenti^ patct.
And this is the truth as he should answer te
God.
Sic SubscribUur^ David Rannie.
AnDR. FLETCnKS.
John Clatkf Serjeant in the regimeot of
Welsh fiizieleers, aged 93 yeara, or thereby,
unmarried, solemnly sworn, purged ef malicci
partial council, examined and interrogated, De-
poned, That the time libelled, the denoaeil
was sent by the captain who commaaoiBd the
deUohment of the king's forces in the Lawe-
mercate to the place of execution to get onkie
from the magistrates or the pannel $ and hav-
ing gone up to the scaffold, and while the de-
ponent was conversing with the pannel, be
saw a stone thrown at the executioner, which
cut him in the nose so that he bled ; and about
the same time, there was a stone, about the
bigness of the deponent's two iisls, hit the calf
of the deponent's log; upon which the depo-
nent with the pannel came dovin from the
Bcafibld, and thereafter saw the pannel moviiHr
his fuzie in order to keep off the crowd,
who had by that time pressed upon the guard,
and drove them about four or fifc yeards from
the place where they were {losted a*t first; and
thereafter the deponent saw captain Porteoos
endeavouring to keep off the innb with his
fuzie, uaving it to and again, telling them to
keep off, or he would fire, hut that there was
no (ire at that time : and the deponent then
walkinc tow^iids the West- Iww, saw four w
five of the soldiers presenting their pieces, aii'l
saw one of them advance to the right where
the deponent vrns standing, und fire upon the
crowd ; which was the first shot the dcponeot
heard ; at which tinio the doponi'nt saw the
piinnel n^ion his left-hand, about seven yeanii
from him ; and then the deponent saw two
other of the soldiers come up betwixt the |»aii-
nel and the deponent, and tire in the air ; and
thereafter heard four or five more rthom, which
the deponent thinks was fired betwixt the plsee
where the deponent was standing and the pan-
nel ; and the depouvut during that time bad
his eye lixt u|K)n those wli.> lirrd, and did not
observe ca{>t*jin l'orteou:» fire, or ;;ive oriiers to
fire ; and U{ion the first shoi iiJi al'orsaid, tli«
d«>ponent oht^ervtd a man ih'0[) at the entry nf
Hobinsnn's closs. Causu scii'hti.e f^nict. And
this IS (he liuih as he shall an^w^r to God.
Sic Subscribitur, Jm>. Clark.
A NOR. Fletcher.
Colin Campbell o\' Ardonniiik, aged 44yeaif,
or t lull by, man ied, solemnly suorn, purged
of malice, partial council, examined and inters
ro;;utcd. Deponed, That at the time and place
libelled, the deponent in a window from mil.
Carmichaell's opiioslte to the scaffold, obeervcd
no disturbance till once the executioner wis
going up the ladder to cut dowu tba deoeaaid
961]
Jix Murder^
Wilfloo; aod then nw tome itonw thronn at
the ex«ciitiuder, tipoii wLichhs Mired ; and ■■
be was nattiog tbeCura-mercste, the depoaent
etoenea one of tte ainne* hit him, and saw
•uae atoncf thrown at the guard, who were
mon the north aide of ihe KalTold ; aod saw
ttt f%aud makinif motioa with hii fuzic to
keqt off Ihe mob; aod afterwards liimrd lo-
- vbubioldierlhedeiKHieDtiawprewDlkiafire-
• - M; and law another ilone hit (be aame sul-
fa; and thereupuD the said soldier pointed hiii
Mack wcalward, and fucd immediately ;
v.- ipi aaMheraoUMT fired iinineduildy at\er him;
> - ihicti firiagi took tlte defwneJit'B ryei f/urn olT
^ Acpaual; and which two firiiit,i, tbfldepo-
««.' anttbiako, wen the lint iJiat wtjre tired by
y~. Ikaaidtwo wldien who had adtauced ajnoug
fm.- ikt crowd trom their parly. Cauia uitntit
^ . filet. Andtliia ia^betrulli ai ho should ao-
^ tWtoGod.
i
KJJhh JUeaaie, lerjeaal in the city guard
if Bliiobwgh, aged 48 year*, or ilineby, mar-
tiii.ioteDiniy iwom, pureed of nalice, par-
tittfipancil, examined aod interrogated, Ue-
fmi, Tho tine and place libelled, and about
tttliaie the deceased Andrew Wilton was cut
fan, there wBaafaoweiaof atonei thrown at
IhifBird, partieulariy oue biff atone lig-lited
tonit tM depoaent and aerjcaat Fiuhiy ;
itm three pound weight; and that the dritm-
■t waa cut in the head with a ataue, aod ihe
^Mitnick with a atone ; and that Alexander
KHbeat, cenliBeH, one of tlie guard, had lii«
dMdet Made bn^ wiUt a otone ; aad Uiat
Mfttbctcatroketwere given, ibe depooei^,
%«d«r«r tbe pasnd, waa drawing olT, and
•■■H bia Men in the foot of ttie How ; that
fafanad^TO Ibe deponent hie fuaie, wtiicli
nilkafanelhe {tanoel ordinarily carried, tn
i«f, while Jie atlended iJie executioa, and tile
paycn; which Ihe deponent returned to Ibe
pMatagMio, upon tlieajgii'i beii^ giren to
MdowB Wikoo, and before the pauoel came
■Mnlrora Ibeacaffaid, Cauia Kienliit paid.
llj tha ii the Irulh aa be almll anavrer to God.
Sie SubKribitur, Wili.uii Meane.
3». Mackenzie.
AUnmier Campbell, apprentice to George
JNgg, aorgeon in Edinburgh, aged IByeara,
*dMmbj, unniarried, Koleraoly airorn, iiurged
w nalioajpartial council, examined and inter-
—' • Deponeil, Tliut at the time and place
?S:i
I ft«gwn
«tbro
^ — , — ........> .». — - aniong
Mgwird aHer Wilson was cut down ; and
" ' of the aoldiera of the guard step asidr
, _- — oqg the real and Src ; and llu^c were
**1lni flrat ihols tliat he lieanl. ( 'ansa iricn-
«ftttet. And this is tlic truth aa he aboil ati-
*~TteQod.
JlieSvbierUiitur, Ai.ex. Campbiu.l.
Jl. MACKENZIt:.
A. a. 1736. [9&2
itallhaf Ratcert, solilier in tbc city gu:utl
of Edinburgh, agdl 40 years, or thi-rcby,
married, solemnly aworn, purged of malice,
partial council, examined and ititerro<,'ate^,
deponed, That he was preient at Wilson 's exe-
CHtion at tlie time libelled ; and that before,
and after Wilwu was cut down, there was ■
great many stones, both great and small,
thrown among the guard by tbe mob ; thai
after the panoel carae down from the scafTuld,
he saw him waTe bis piece he had in his band,
hot did not offer to present it ; then he saw a
siridier step out fruoi Ibe rest, and tire bis |tiec<
IB the air; as likewiw two or ihrea suldieri
that firod tbereafier, did hkewise fire lUeii
pieces in the air ; and that those, who fired
first, were alanding cloes by the pannel, ami
the deponent; and tbcsr were the ftrst ahoU
he heard that day ; and he heard the soldien
■ay, one to auotker, Fire, or we shall all b«
knoekad duwa ; and upua more atones being
thrown among them, several of tbem did lire ;
abola wore fired, tlie caplain inarched up tO'
wards the Row, and tbe men tullowed him :
that at the lime that the shois were fired, ai
•fonsid, the pvcnel was standio!; at tlie font oi
Um sleps of the scaffold, with his fuce lowardi
tlic oaollei and deponed, he was ouc of tkoM
that followed ibe caj>iBii>, nor did he see tjii
captain fire, as Im was gt>inK up tbe Ilow : tba
when the coptiiin wis luarubiiiif ou tlio brad oi
the tOFn. up the How, he heard a drnppiiig slio
or two fii-ed from the rear ; nor did be see thi
co^in return Bl^in tniiardii llie scatlbkl, lu
marched alraigbl on up to tlie town. Caiin
irientia putel. Anil tiiir^ is the trutli as hi
shall answer to God. And declared he canno
Sie Subtcriiitur, J a. Mackenzie.
TJa-cii Marline, soldier in the city guard o
Edinburgh, aged 40 years, or thereby, married
solemnly sworo, purgfd uf malice, partia
council, esamined nniT interrogated, deponed
Tliat he the deponent wax one of the parly o
the city tfuard, n ho altendeil the ejfecution o
Andrew Wilson; anil before iht're was anj
firing he did hear llit pannel call to them, no
to fire ; and before ihal, llie deponent had hi:
fihouliler hiade dis^niiiied with a siruke he rC'
ceited upon it with a stone. Causa icienlu
putit. And this is the truth as lie slmuld an
swer to Gnd. And declared he cannoi write.
Sic Subfcribitur, IJ.t. Ebskinb.
WiUinm Byret, aoldier in the city guard o
Edinburgli, age<l 51 years, or thereby, married
solomoly Bwom, pnri^ivl of midiue, parlio
council, oxamined ami iutcrrogaicd, deponed
That he was one of tlie city t;uard, who at
tended the execution of Andrew M ilson ; am
that he did not hear captain I'ortcous give anj
orders h> fire ; but nl>en the firing hapi>CDed
he was at some distance from the pannel; afte
the firing of iteferal shots, the pnnnel cailci
uulo the Nldiera, to fall into thtir vauV'
083]
10 GEOAGfi: II.
Trial of Captain ForteouSt
\m
follow him ; ivbich according^ly the deponent
iind the rebt did ; falling in gradually z^ they
were able ; and followed him to the guard-
house till they were dismissed ; and iu their
inarch up tlie Bow, did bear one shot that came
from the rear, but by whom he knows not.
CmAia scientia paUt. And this is the truth as
he should answer to God.
Sic Subtcribitur^ Wiluam Byres.
1)a. Ersjune.
r
Jiunei Armout^ writer to the signet, aged 60
years and upwards, married, solemnly sworn,
purged of malice, partial council, examined and
interrogated, depoued. That he was looking
oYer a window, to see the execution of Andrew
Wilson ; after the criminal was thrown over,
and cut down, he obserred the croud of people
throwing* stones of considerable bigness, but
against whom they were directed, he knew not,
but they fell among the noldiers ; upon which
he heard two or three shots, but from whose
hands he did not olwenre : thereupon there was
an intermission for two or tliree minutes ; but
thereafter, when the pannci with his party were
retiring, which they did iu great confusion and
disonler, thecrond pursuefl after them, renewed
the throwing of great stones, and in great
nuuii»er; upon which some of the soldiers
turned about, aixl murchcd back, some eight or
ten paces, still in disorder ; and then heard a
good numlter of more shots tired ; which to his
grief he saw did ereat execution. Catt$a
st:ientite patet, Auu this is the truth as he
should answiT (o (jod.
Hie Subscribitur^ James Armour.
Da. lilRSKlNE.
John Robert son, stabler in the Grass- mcrcate
of Edinliiir^li, Oifcii 30 years, or thereby, mar-
ried, solemnly' sworn, purifcU uf niulice,' partial
couiicil, examined and interrogated, deponed,
That at the time libullcd, as he stood in his own
window, iu the Giass-niercate, he saw tho
panntfl with his piece in his hand, niofing it to
and agiiin, kci'pin^ off* the niub ; and heard him
say, Pire, or 1 will fire, does notknow which of
the two : that imiuediately after this, he saw a
single man Ktep out ilirue or four paces before
captain PortCiHis, and fire bin piece; and the
deponent verily believed, that the people who
fell near his cios.«, ;;oie their wounds by that
shot; brrauiie they wore lying in that place
towards which the man seem to point. De-
poned, that he heard some tiring tow&rds the
loot of the Bow, Itefore the last«mentioned shot.
Causa Silent ia patet. And this is the truth as
he sbou'ii an-^wtT to God.
i&'c Subtcribitur^ Juiin Robertson.
Glut. £liut.
George Vint, coal grieve to sir William Hnird
of Ne*ibvth, aged 46 vears, or liiercby, mar-
riefl, sfdeuiuly sworn, purged of inulice,* partial
council, exa'iiined and interrfigateil, de|K)ned,
That at the time libelled, he was in John
Uobertion's window in the Ghnss-mercate;
Vfkta h« obterveU tbepannd moving hit piece
to and again,'as if keeping off the mob ; aod
at the same time be saw one of the mhlien, a
black-haired man, step forward before the
pannel and fire bia piece; upon whieb the
pannel turned about, to him and puhed him
mto his rank : deponed. That be did not seethe
pannel fire at that time, or anv other ; and that
the mentioned shot was the first he beard sr
saw that day. Causa scientia paid. And tbii
is the truth as he shall answer to God.
Sic SubtcribitUTf Georqs Vnr.
GiLB. EUOT.
Alexander Thornton^ town officer in Edin-
burgh, aged 40 years, or thereby, mafried,
solemnly sworn, purged of malice, partial cood-
cil, examined and interrogated, de|ioned, Tbit
being upon the scaffold onthe 14th of April last,
when Wilson was executed ; the pannel sent
faim to the magistrates, who were in WilUani
Orr's house, to know of them how long the
criminal should yet hang upon the galk»ws ;
that he returned to the pannel with the magis-
trates direction ; which was, that he should still
hang a quarter of an hour ; but before the half
of that time was expired, Wilson was cut down.
Causa scientia patet. And this it the tmib as
he should answer to God.
Sic SubscribituTf Alex. Tromsoh.
GiLB. EuOT.
Peter Coulstoun, merchant in Edinbnrgb
aged 25 years, or thereby, married, aolemnlj
sworn, purped of malice, partial council, ex-
amined and interrogated, deponed. That time
and place libelled, and afler the first firing, the
deponent being standing under the nortb-wnt
comer of the Curn-mercate, saw the pai:Dci
march the guard under his command up the
West- bow ; and saw several of the rear of that
guard fire upon the people assembled at the
execution ; and at the seme time observed,
that the pannel was withiu the lirst turn of the
West Bow, and so out of the depi>nent's view.
Causa scientia patet. And this is the truth u
he should answer to God.
Sic Subscribitur^ Pet. CouuTOcy.
An DR. FLEfCBCB.
John Kcnnedi/, surgeon in Edinburgh, aged
50 years, or thereby, married, solemnly sworo,
purged of malice, partial council, examioed
and it)terroL;;aled, deponed. That some short
time after the execution of Andrew Wilsoo, io
April last, the deponent attended the persons ef
the town guard after- mentioned, viz. Alexander
Mushet, soldier, the spine of whose shuulder-
hoiie was crushed, and Alexander Braid, soldier,
who had a contusion in his rij> lit foot ; both
which persons informed the deponent, that they
received these hurts at tlie execntiou of the uw
Andrew Wilson ; and thut the last mentioned
lierson is lame to lliii day. Causa scientia
patet, the deponent was employed to wait
upon the saids persons. And this is the troth
as he should answer to God.
Sic Subscribiiur^ John KkcneoY.
Andb. Flbtcbu-
IBS] fir Murder.
Th« l4iri» Jailiee Clerk and Coromia-
Minen of Jiutieiary, onlained ifac aasixe to in- I
;lose initantlj io a room preiiared fur ihem io j
be Eichcqner, and return thvir Terdict in ibe
)lil Court Houta lornOTrow at four o'clock at
li^ht ; and the liaill fifteen to be then preseut ;
•ach penon uoder the pain of lair ; and ibe
MDoel to be carried back to priion. i
CcBU Jcsncuuf, 8. D. N. Regis, tenta in !
Pnetorio Burffi de Edinburgu, Vigeiimo
dieHeiifiiJulii,Blill<?iimoKptineeDlesimD |
trigeiimo KXlD, per HoDOrebtlet Vims
Andream Fletcher de Miltoa, Juiliciarium
Clericum, DomiDum Jacobum Mickeusie
de ItoyitouD, Maeiitrnm DaTidetn £r«-
fciiie de Dun, Domiooa Gualterum Pringle '
de Newhill, et Gilbeitum Eliot de Mintn,
ComniiHioDacuM JoMiciarii, diet. S, D. N.
Curia legittirofe affirmali.
^ Mm Forltout, lately one of ibe captain
iluleiumta of the clly ({uard. pannet, indicted
od accused la in the tbrmer Scderunls.
iceoftheaaida lords: wLereol'lbele
EoiNBURon, July 30, 1736.
The above iniee liaf in)^ incloied, did choice
ir John lni{lia of Cramoml to be Ibeir cbau-
dw ; and Jamei DatidsoD, bwikifller in
Bfthprgh. to be their derk : and liavinr con-
•facd the indictment Ht ihe instance of Dun-
en Forbea nf ColloddeQ, esq. his raajctly's
AlTOcat for his liighnrsi interest againit Juhn
Pmeoat, late one of (he captain lieutenants
«ftka city ^ard of Eilinbuntb, liannrl, with
ikatardjuiOice clerk, and lords commisiiaoen
if jnsliciary, tlieir interlixguiiar tlierenpun ;
toi depoBitiooi of the witnesses adduced for
piMiDg Ihereof: the pannel's own judicial
ewfrMton, and 'leposiiinns of the witneMes ad-
'octd for the saiil Juhn Purteuui, pannel, his
uculpatioD: they ail in one toice Tsod it
FBTtD, That the said John Porteous, pannel,
md s guQ amuni; tlie jieopte, assembled, at
Ibe place of execution, and lime libelled. As
■JH, that he gave ordeii to the Buliliers under
u eiHDinand tu fire; and n]>ou his end their
■ firing, the perMinii menliuned in the indiet-
■nt were killed and wuiimled. And fand it
pOfsn, that llie pannel and bis guard upre
•Mud and beat by seieral stones of a cousi-
*nUe bigness, thrown omoiij;*! them by the
■•tttodei whereby several of the soldiers
*m bruised and wounded. Id wimess where-
Wournid ehsncellor sod citrrk, in our name,
Nnndwcribed their prescotd, day ain) place
^cSHbtCTibitur, Jo. I\nus, Cltanc.
James Davidsun, Clerk.
tW Lord Justice Clerk aod Lordi ConnDii-
A. U. 1736. [98
^piters of JuxticiaTy, bavintr considered the t«
diet of assize reiaraed a<;aiiiM John Porteni
paonel of this dale, they io respect thereof, t
the mouth of John Datgleish, dempsierofcoui
decerned and adjud^^ed the sniil Jolm I'urienu
to he taken from the Tolbooih of Kdinbui^l
upon Wednesday ibe 8lh day of Sipterah
nent to come, to the Orasi mercate bf KiUi
burgh, the common place of execulion <
the said burgh, betwixt the hours of two ai
four of the clock of the atternooii nf tliL> ih
day, and tbere to be banged by the neck u|k
a Eiibbet, by the handa ol the executioner, ui
til he he dead ; and ordained all his moieab
goods and gear to be escheat and iubrvught i
tail majesty's nse, which was prouooncnl ti
doom. Sit SukKr'MlUT, And. pLBTcnn
Ja. Hackekzie
1>*. EUKTKE.
Wa. Princu.
GiLB. EUOT.
The priioner beiog thus ordered for execu
tion, presented th« ToUoning Petition 1« hi
majesty ;
To Ber Uost Excellent Majccly,
QUEEN. CAROLINE, '
GuAuiiAif or THESE Realms :
The most humble Petition of John Poi
TE0U3, late cams in -lieu ten ant of tb
City-guard of Ediobui^li ; ddw and*
sentence of dcatJi:
SUeweth ;
That a certain person named Anitreiv tVil
son, being coniirted in the High Court t
Justiciary nf Scotland, for u robbery of t1:
public money, committed on the high-wa;
wan sentenced to death for that nltrnce ; and'
bring anprehended, the populac
the said offender, or commit sii
i« uppoinied b
~ attend sue
the magislraieii of ilic
exfcntion with a detachment of the ciiy-guar
with orders to see the same duly executed, at
to suppress any tumults that iiiitjlit happi
upon that occnsian : and, for that end, the sa
delachraent bad powder and ball delivered i
them nut ofthe city masazine.
That, while the said offender was hangin
upun the gibbet, the populace be^an to insli
to have his l>ody cut down, before llie msgii
trates had given orders fur tli»t purpose ; an
your petitioner having no autlioriiy to uoosei
thereto, without such orders, they Ibreatned t
cut him down by force ; and. in order to to dc
croutled in great numhurs upon your petition*
and bis men, and did actually assault tbet
with large afnes, by which several ^ th
dttaohment were hurt and wnanded.
That, durinit this tumult, direta of the n)
detachment, without order from \tmi ne:;
tioner, unfortunately lircd upon tLe'mulrtoA
whereby several peiaoua wert killed, ai
Others wounded.
That your |>tiitioiKr, «fta V»-^t
987] 10 GEORGE 11.
utmoit eDdeaToars to restrain such drmishy
bis mea, perceiviog tlienn to run into coiifusiou,
and to act without orders, drew them off as fast
as possible to the g'uard ; and committed such
as lie sus|)ected to have fired, to the custody
of the guard, tog^ether with their pieces, which
he orf^red to be kept for inspection, in the
aame condition as they were then in.
Tiiatyour petitioner beini^ accused of having^
himself fired upon the multitude on this occa-
sion, and also of having^ ordered the detach-
ment to fire, without any just or reasonable
cause, your [»etitioner was put upon his trial in
the High Court of Justiciary aforesaid, for the
aaid supposed offence, and the jury empan-
uelled to try your iietiiionor, by their verdict,
found, That it wns proved, that your peti-
tioner had fired a ^uii, and also had given
ordi'trs to the detachnietit and guurd under iiis
command, to fire upon the multitude so assem-
bled; from which firing, either of your peti-
tioner, or of the dutacthineut of guard uuder
bis command, by his order, the several per-
sons Kpcciiioil in the in.lictnient aj^ainst him,
were rcspectivciy killed and wounded. And
filso found it proved, that the mub assembled at
the execution ul'urc^said, did invade and attack
your peliliouer, and the detachment of guard
under his command, with stones, of a consi-
derable bignt'S:!, whereby several of the men of
the guard were bruised and wounded.
V\ton which verdict returned Uy the jury,
the Court decerned and adjudged your peti-
tioner to be hans^eil upon a gibbet, upon the
eighth day of September next.
Th^t though your [letitioncr is sensible of
thatdtfemice and rc^spcct that is due to the
viT;!i;^t of a Brills I', jury, yet he hnnihly begfs
Ic:iio t<i represent to your most irxccllcnt ma-
jesty, the following oiicumstauci's as they ap-
peared upon his trial ; to wit, That the evi-
dence against your petitioner, as to his having
fired, or given orders to fire, was very contra-
dictory and inconsistent ; for though some of
liie witnt'sses deposed, that your petitioner
fired the first shot, yet they differed extremely
a!i to yuur [letitioner's situation, at the time he
is alled^jful to have so fired, as well as in other
inrcumslances ; some placing him at one corner,
and others at a quite opposite corner of the
scufibld : some allcdging that none of the sol-
diers were then near your petitioner, and that
iio other shots were tired at that time ; while
others describe your petitioner as encompassed
uith soldiers, and say, that several shots were
fired instantly upon your petitioner's firing
such first biiot ; and some agree, that the firs^
sliot was not fired by your petilionur, hut by a
ccutintl of the guard, who was close by your
pefitioiicr.
Vf'hcrcas, a great many persons, of un-
doubted credit and veracity, produced on the
part of your petitioner, expressly swore, that
during the whole time of the firing, (which
continued alK)ut four or five minutes) they took
rxact notice of your pefitioner's behaviour and
iKiiuiuct|«iidfoiikl not obeore that he find at
Trial of Captain PorteouSf
[98B
all ; but that, upon tlie mob^s pretting se-
verely upon your petitioner and his men, and
pelting them, with large stones, your peti-
tioner called aloud to keep off, otherwiie be
would fire ; and that upon your petitioner's pmm-
ing his piece, in order to'^intiiiiidate the mob, a
cenfinel of the guard, (unknown to the wit-
nesses) advauced from behind your petitioner,
and fired the first shot, upon which one of the
multitude fell to the ground: from which ex-
ample, they supposed, several others fired ;
by means whereof, the several persons in tlic
indictment mentioned, were either killed <)r
wounded.
And as a farther circumstance, to shew that
your petitioner did not fire, it was proved, that
upon his return from the execution, year pe-
titioner went directly of his own accord to the
magistrates, who examined his piece, sad
found the same loaded, and in such coiMitioD»
that they agreed and were satisfied, it bad not
been fired ; and the Serjeant of the detach-
ment attested, that your petitioner having deli-
vered his piece to the deponent to keep, while
your petitioner attended the dev<itions tt the
execution, the deponent restored the sunt
again to your petitionGr, just before Toer
petitioner descended from the scaflbld, wVich
is a strong cireumstanoe to shew that veer
pethioner must have fired his own piece, if he
had fired at all.
Your petitioner also begs leave hnrobly tt
observe, that when a band of armed men
arc together, and some of them fire, it is veiy.
difficult, especially for those at a distance, to
discriminate the persons that actually fired;
and your petitioner is in charity led to be-
lieve, that the circumstance of your |ietitioiirr s
levelling his piece, and threatning to fire, at-
tended with that of the centime's having Iked
just behind your petitioner, may have iudnced
some unwary persons, in tlie heat of popabr
iury and resentment, to be too ])Ositive iu ibs
assertion of facts, in their nature dobioos and
uncertain.
And as to your petitioner's having giffii
orders to the men to fire, though two or three
])ersons gave evidence against your petitioaer
as to that fact, yet neither did they agree
touching the place where your |>ctitiouer ms
standing, nor in the fonn of wonls pretended
to be used by your petitioner in the giving
thereof. Wticreas it was deposed by a great
number, particularly of the soldit*rs/who wen
close by your petitioner during the whole tinK
of the fray, that they could not observe thst
your petitioner gave any such orders ; hut so
the contrary, that he csdled aloud to the met,
Don't fire, and that he pusheil back the min
that fired the first shot into his rank, (which
shews that your iietitioiier did not ap|Hwrt
thereof;) that he drew off the men as fast si
he could ; and that being pursued and pelted
by the populace, divers in the rear luraed
about and fired, when your petitioner was it
auoh distance, that he could not posiiU/bt
privy or conseating thereto.
9S9] for Murder. A. D. 17S6. [gSO
It vrat likewise oliseircf] at the trial, and ooC leanmo septingentesimo tri^esimo into,
eoiitradicted, that upon many former occasioiia per Houorabiles Vims, Andreara Fletcher
of tumults, when your petitioner with the de Milton, Justiciarium Clericnm, Do-
guard hath been ordered to quell the same, minos Jacohnm Mackenzie de Rnystoun,
your petitioner had bore gpreat insults from the Oualternm Pringle de Newall, Commis-
populace, even to the danger of his life, with- sionarios JusticiariiB dicti S. D. N. Regis,
oat firing, or ordering his men to fire, and that Curia legiltimJi affirmata.
ffi^fi^ II^'T ''? T^i !!T ^^ ''''" ^"'' The nid day the Ix>rd Justice Clerk deli-
tifiedbv the law in doing cither ^^^ ^ letter Vm his grace the duke of
So tRat upon the whole as your petitioner ^^^^^^ one of his majLy's principal m^
kath the inward FQtuifaclion ot being con- «»^.«:^ ^r «*.4^ ^K«-^f ♦u^ ♦-«il ^uii^ -
... ir r 1 : • ^^ . e *i^ r.^«- GTetaries 01 State, whereof the tenor follows :
■oons to himself of his innocence of the facts '
charged against him, so he humbly nppre- _, , , Whitthall^ Augugt 86, 1736.
bends, that tlie evidence adduced to prove the My lords, apphcation having been made to
mne, when compared with your petitioner's j»« ro«jerty in the behalfe of John Porteous,
defence, will not appear to be certam or con- »^ caplsin lieutenant of the city guard of
dusite. Edinburgh, a prisoner under sentence of death
But in case your petitioner had been guilty "9 the gaol of that city 5 1 am commanded to
tfther of firing, or ordering his men to fire, sigrmiy to your lordships her majesty's plea-
vpon the occasion aforesaid, yonr petitioner »"»^» that the execation of the sentence pro*
Biost humbly intreats your majesty to consider, nonnced against the said John Porteons, bo
that your petitioner was in the exercise of a respited for six weeks from the time appointed
»Wt delegated to him by the lawful civil au- f^ *>« execution. I am, my lords, your
thority ; that he and his detachment were first lordsbi|>s most obedient humble servant,
ttlifewfully assaulted and invaded by the po- ^^^ Sahscribitur^ IJollbs Newcastlb.
poboe, aiid divers of his men bruised and hurt ; Directed on the back thus: «* To the richt
ud if, in the case of such an insult upon the hou. tlic Lord Justice General, JusUce Clerk,
kws, vour jicUtioner bad proceeded to repel and other Lords of tlic Justiciary at Edin-
Ibree by force, yonr i>etitioner humbly begs tmrgh."
leave to obser^'p, that thooirh he should look m, n ^i • 1 1 1 «t. •
Uck with the utmost «)rro/n,,o.. so fatal an „^''f ^tf "' '''f •»"• 'S^.« p^V*"?' V"
event, yet he humbly hopes, tiat the provuca- "?"'' '" »!'« "«•?«'«'«»• «» td.nburgh, for stop.
lion ana aggression afoisaid, would 'be con- P'"? *!'«"''> execnt.«», whweof the tenor Jul-
^1 11** -. * iiL 4 :«.»-. :^ lows: Hy the riufht honourable the Lord Jus-
^ered by your most excel cnt majesty in . ^.,^^>^ t|.e Lords Commissioners of Jus*
your profound wj«lom. as a great extenuation ^ j Wheix as her majesty, guardian of Ui,
of an oifeucc, which <jould not be supposed i,:„^/o,np 1,-. been irracious v uleased bv •
to be attended with any prqicnse malice of rJ"?_ ° "^^ .."?_ i?" ?J^^^^^^
yonr p
had no
yuMbedeemed a proper object of the royal ^^^^^ „,.j^^j^ pronounced ai^iinstjohn Porw
^~^ ^' .4, . Lt teoiis, late captain lieutenant of the City Guard
Your petitioner therefbre most humbly of Edinburgh, present prisoner in the TolboolU
pny% your most excellent majesty, to Uke your ^^ Edinburgh, which was to have been executo
patHumer'a unfortunate case into your royal „pon him, upon the eighth day of September
oomnderation ; and to extend that mercy and instant, be respited for six weeks from the time
compasttun to your petitioner, by which your appointed for his execution : These therefore,
iujcity, adorned with all excellent and io obetlience to her majestie's commands, dia-
priDeely qualities, is so remarkably <listin. charge and prohibite the magistrats of Edin-
gaislied ; and that your majesty will be jrra- burjjh, and all other officers of the law, from
cioualy pleased to issue your royal warrant putting the foraaid sentence of death in execu-
for yoor petitioner's pardon. And your ncti- jjon, upon the said John Fbrteous, till the 20lh
Ikmer, whose doty bath hitherto rendered him, of October next to come; on which day the
oa all oocasions, most zealously attached to gaid magistrats of Edinburgh are hereby re-
liiB n^yesty, and our happy constitution, will, quired ^nd ordained to put the former sentence
fraiD the addilional bond ot the most powerful of deaUi in execution, upon the said Juhn Poi^
gratitude, devote that life to the service of his teoua in all points, as they will be answerable.
aoa excellent majesty, and his illnstrious Given at Edhiburgh, the 8d day of September
faouae, which be shall enjoy as the fruit of ^736 yeara.
your miOcsty's clemency and grace. ^ Subicrihihir, Ajid. Fixtciier,
-__ j^ Mackbs/.ie.
Ilflr majesty was pleased so far to comply \Va. I^rinole.
wkh thtt Petition, as to graut a reprieve, ^ , .-.•*.'«...'
vbioh vat sigaified as follows : [Extracted forth of the Books of Adjournal,
upon this and the preceding one hundred and
CsBU JosTiCMRiA S. D. N. Re^is tenta in twenty four pB(fi-s. By nic John Davidsou,
Nofo Senionis Domo Burgi de Edin- Clerkto the Cou it of Justiciary.
togo, Tertio Die Meiisis Septerobris Mil- Joun Davipion, Clerk.]
«>l}
10 GEORGE IL
Trial qf Captain PorfcouSf
[991
But tbe populace beinf? greatly displeased
THrilli this favour shewn to captaio Porteous,
agninsi wbom tliey were migbtUy incensed,
audaciously took upon tbem to execute tbe
sentence tbemseWes. Accordingly on Tuesday,
Septenibertbertb, about 10 o'clock at uigbt,
(being the night preceding tbe day, which had
been appoint^ by the Court for his execution,)
some men by surprize entered the city, seized
all the fire-arms, battle-axes, and the drums
belonging to the City Guards. The mob in a
lew minutes locked and secured all the city
gates, and with drums beat an alarm, then at-
tempted to force open with hammers and other
instruments the prison door ; but these failing,
they set fire to it, and burnt it. When they
entered the prison, they called upon the under-
keeper, who was within, and mad»himopen the
douole locks of tlie apartment where captain
Porteous was ; it had also a bolt within, but
was not bolted, so they had rcaily access. lie
begcfed they would spare him till next after-
noon ; but they refused his request, and im-
mediatety hurried him away, which was about
eleven oxlock. When brought out uf prison,
be was heard to cry. They then marched out
"with lighted torches before them: In their
way to the Grass -market, passing by a barber*s
sign-post, some called out to iiang him up
there : but it was rcsolrcd to hang bim where
tbe murder was committed ; so they proceeded
to the place that the gallows useil to be fixed for
execution, where he wus about a quarter of an
hour till they opened a shop and brou^rht out a
rope, one end of which they threw over a sign-
post, about 20 foot high, belonging to a dyer in
the High-street, near the ordinary place of exe-
cution. He desired some time to prepare for
death ; but they answered, They would allow
him uo more than those who were shot. They
then pulled bim up in the dress in which they
found him, viz. a night-gown and cap. lie hav-
ing bis hands loosed, fixed them 'twixt his neck
and the ro)>e, whereupon one with a battle-ax
struck towards his hands. They then let him
down, and having on two shirts, they wrappetl
one of them about his face, and tied his arms
with his night-gown ; then pulled him up
again, where he bung next morning till day-
light. When he was cut down, and carried
to the Grey- Friers church, upon ins|)ecting his
body, it appeared his \et\ shonlder was wound-
ed, his back diso<»laured, and his neck broke.
It was observed, that this mob was under a
stricter concert and better conducted than
usual ; for as marching along to the execution,
Porteous observing a gentleman of his ac-
quaintance, he gave him a purse of 23 guineas,
which he desired might be delivered to his bro-
ther. They lell the prison doors open, and li-
berty to the prisoners to make their escape ;
and after tbe execution was over, they left the
arms and drums on the place of execution,
where they were tbund the next morning,
puring the tumult, parties of armed men,
with drums, patroled in the different streets, to
prfveat any surprize from th« king's furcef ,
quartered in the suburbs. After the execmkNi
was over, they went to the lord provost's home,
and told him they were satisfied, and so dis-
missed, without offering any othe^ riolence.
There is one further circumstaooe, that ia
order to supply the want of cler]|fymen, tbey
ordered two ut the gravest of tbeir Bumbcr lo
exhort him, as he went to tbe place of exe-
cution.
The following account of the czecotioD of
Wilson, and of tbe putting to death of caplaii
Porteous, is given m the Historical Cbnmds
of the Gentleman's Alagasioe of April and Sep*
tember 1736:
«< Thursday^ AprU i 5.
" One Wilson was hanged at Edinbargb Isr
robbing Collector Stark. He having iiii3e aa
attempt to break prison, and his comrade bar*
ing actually got off, the magistrates bad tlie
city guards, and the Welsh fusiliera aadcr
arms during execution, which was peHbnocd
without disturbance; but on tb^ bangmaa'i
cutting down the corpse (the magistrates bnof
withdrawn) tbe boys threw, as usual, mmt
dirt and stones, which falling among tbe city
guard, captain Porteous fired, and ordered hii
Hien to fire ; whereupon above 20 persons wen
wounded, G or 7 killed, one shot through tbe
head at a window up two pair of stairs. Tie
captain and several of bis men were after com*
mitted to prison.^'
** Tuetday^ September 7.
<* Betwixt nine and ten at night, a body of
men entered the west port or iLdiuburgh,
seized the drum, beat to arms, and calling out.
Here! All those who dare avenge innoeeat
blood ! were instantly attended by a numtruui
crowd. Then they seized and shut up the
city gates, and posted guards at each, to pre-
veut surprize by the king's forces, while aoe-
thcr detachment disarmed the city guaris, aid
advanced immediately totheTolbooth orprisoa,
where not being able to break the door iritk.
hammers, &ec. they set it on fire, but at iIm
same time provided water to keep the fliinc
within due bounds. Before the outer door vm
near burnt down several rushed through the
flames and obliged the keejier to open vSt ipncr
door, and going into captain Porteous's spart*
ment, called, VVhere is the bug;;ar Porteom?
Who said, I'm here, uhat is it you are lode
with me? To which he was answered, We
arc to carry you to the place where you khettn
much iuuocent blood, and hang you. (le maile
some resistance, but was soon overcome, Ux
while some set the whole p isoners at libeftyt
others caught him by the legs and drag|(cd
him down stairs, and then led him to tlieGrasi'
market, where they agreed to hang him wilb-
out further ceremony ; accordingly, takioff >
coil of n»jie from a bhop, they put uue end « ll
about his neck, and flung tbe other cud uicri
d^ er's groas post or ^lo ws, and tirow biv "f i
Trial nf William MaclaucMan.
Imt hiting ifot bi« hands to llio rap«, they ki
tnin ilowu nnii tied Ihero, bqiI ilraweil lilm up
■^UD, but uWrvin^ what an inilecrat aigbl he
WH wiUioiit any covf riag oter bis fiM, ibey
fcl him ikiwu ■ SMonJ lime, aacl |iulle>l uft'
vot oftbeiwoshiru he hail on &iid wrBp|ied it
■Iqui his hmd, auJ hauled him up a third
thm wiih loud huzza atiil a rulf of llie drum.
ilAer heliBil liiing till supposed lo bedead, th^y
—'■'-' -' - ronelo the pnst, tlien formally ealut-
ollirr, Kroiinded their ^.rniB, and on
B.01hw ruff of the drum retired out of ton'D.
~ 2 i>r thit kind wai ever m boldly at-
I, or M Micceufully executed, alt in the
■ »o hourv, Bl\er which eiery ihiny
The magistrates endeavonred lo
t their design, but were attacked and
B aivay. Next morniug at four when ibe
was taken down, bit ueck was broke:,
I wounded, aud bia back and head
■a what wKinentioned laat month, with re-
p to ibe iiblaiuiog this ui>l«rlunate man's
r*, there was a small mistake; scTeral
• of quality aud diatiuctinn did apply lo
' aly, io I'ai'our of the captoin, but we
. red ibe magiatrales of Edinburgh did
bllie leul interest tbemsekei in that ruat-
|Knd no doubt they had their reascios ;
k fc not the only instance of the [>oj)u-
laceof that city, putting into aclioii Ike brave
but unfurKiiing principle couched under (Ue
raolto of tbeir nation. Nana mc iuipuiu liuettiC.
To mention ooe; in lliebt-uinniiiguf U< Amie's
reign, when the earl Sealield Has chsncellur,
am Green [See bisCoae, toI. U, |i. 1 199. -o Ihia
Colleclionf. was coDdemned for tlie murder of
caplaiu Jliddlelon, and Ibe council in Edin-
burgh ordered him to be repriered, which Ibe
mob bearing, wlieo the ear] came iml of Iba
council, Ihe^ broke and otcrlumed his coach,
and greatly lusnlled the earl, and obliged bin)
to go back lo the council and gel the reprieve
changed into an order for his execution, and he
was execuled accordiugly.
■' About 14 persons were taken into custody
ihe next day oo account of ibis riot, bul noevi-
dFiice appearing agaiast tbem, 11 wtre soon
di^barged, and the others not long after."
" Saturdat/, September tS.
" A proclamatioD was publiilied, otfering a
reward of 2001. and his majdaly's pardon, to
Ibe discoverers of any person concerned in the
murder of captain Porteoui, and for every per-
son to discovered and convicled tool."
From theviolencecoinmilted upon Porleotis,
arose lliu following Case.
9. TheTrial* of William Maclauchlan, for Mobbing, Murder,
and other Crimes ; JO GEoufit II. a. d. 1737. [Maclaurin's
Arguments and Decisions.]
The Indictment was as follows : "That
irlwrEiii by Iha law of God, the common laiVj
Iha muDicipBl laws and practice of this king-
dpn, and ibe Jaws of all nthtr WFll-governed
mwu, jirivy conspiracies, to raise, procure and
n»rt, and the raising, procuring, or moviog,
■eduious commotions of tbe people mobs or lu-
mut's, rii viuUliou of the laws repose and trnn-
3nillii_\ "I (be kingdom or any part thereof;
ir coiiiiK'uimg Ibe lieges by !>eiit of drum, and
ilii-sr :<-■' Lulling themselves riotously and lu-
ti'tjctber, armed with guns, locba-
I liier wariike weapons whatsoever.
l:I>, without lbs special licence uf
.^n, ortbeuuigistrates uf tbesarae;
u,<r „i, |i. .-.uig, invading, or seiaiog, the guard-
rwsui ul uny borough or city by force or vio.
Udcw, dwaimiag and driving out tbe soldiers
• See the preceding Case.
It appears by the Geollsraan'* Mngazin
Harch, 1737 , that donng this trisl it was
mmifA tlial s body uf liiotmiii had conspired lo
arty oS ibepauuci, io cnuMnjucuceof wbich
lb« nagisirates onlerrd tbu cily guonls to be
placed there for tbe preservation of the public
peace, and the takiug away their arms ; the
violent and raasterlul seizing and securing Ihe
gates of any city or borough, by numbers of
dissolute aud disorderly persons riotously as-
sembled, whereby ibe lives and properties of
. . - -idily
and profligate pnrtof the people; tbeiusuTiing,
sUiniiig and resisting, magistrates in tbo due
execution of their offices ; tbe raising wilful
fire, and forcibly breakiug open the doors of
public prisons, and by fori^e, Ibreals or terrors,
extorting tbe keys from the lawful keepers, sod
setting at large prisoners Iswlullj confined lor
capital or other heinous crimes ; and Ibe com-
mitting wilful and deliberate murder, under
cloud of oigbt. in derisiun of public justice, in
open defiaiice and contempt of bis majesiy'a
Jaws and authority, aud siieiided with circuai-
Etances of brutal cruelly, are most enorinooa
for I am! deteniable crimes, destructive ol the public
peae«, daji|^eruus lo tbe lives, liberties, ami
property ol ihc subject, subversive of all laws,
government and sncirly, odious and abuiuioable
in the siglit of Uoil and man, and niott severe-
ly punisliable : yeltnicit i*and of verily, That
you have presumed to GOiamit, and an nil7
9 8 •:=!—
9951
10 GEORGE n.
Trial of William Madauehlan,
[896
of all or one or other of the foresaid abominable
erimes, ac^^fravated as aforesaid ; in sn far as,
upon the 7ih day of Sj'pteniher, in the year of
our Lord, 1730, or one or other of the davs of
the «aid mouth, certain M^ditious and blood- |
thinly persons, sbakm<;oif all fear of God, re-
fr^rti rtiid rfveience to iiis majesty's laws and
authority, ^upied by disloyal and diabolical
prineipl*^, or ioHtij^uted by ifan^rous and des-
perAte mcendiarieK, bHvint<^ feloniously con-
spired iinlairfuily to rai^, move and procure,
mobs and tumults, insult the laws aud public I
authority, and, in au outri<v'eous manner, to!
break aud disturb the public peace iu the city
of £dinburf>h, to do mutder, and commit the
other black and odious ct iines after mentioned,
did assemble themselves i**frti\\er within the
said city and county of Edinburjifh, about, the
hour of nine, or some other h(»ur that night ;
and bein^ armed with cinhs and other offensive
weapons, seized adrumiu the possession of the
drummer of Portsburgfa, part of the suburbs of
Edinburgh, and by beating the same within
the fiaid borough, convocaled and brought to-
gether great numbers of dissolute, profligate,
and disorderly persons, who proceeding to the
Netherbow port of the said city, by force and
violence seized upon the ket'per and keys
thereof, shut and locked -the gate, and marcn-
ing to the guard-room, where the city-guard,
constituted by act of imrliament, was in use to
lie kept, by force and violence seized the cen-
tinel standmg at the door, entered the same,
and disarmed and drove out the soldiers placetl
there, by the authority of the magistrates, for
the preservation of the public peace, and arm-
ing themselves with the guns, lialberts, lo-
chaber-axes, and other weapons, kept in the
said room for the defence of the city, sent par-
ties to the several ports, and took possession of
the same, shutting the gates, naihng or rolling
stones to secure the said gates: And having
thus made themselves roasters of the cily, to
the great fear, terror, and trouble, of his ma-
jesty's lieges, to the imminent danger of shed-
ding much blood, pillaging, plundering, and
burning the houses of the inhabitants, they
advanced towards the public prison of the said
city, and planted some of th(*ir accomplices,
armed as a guard, from the north bide of the
said {urison, commonly called the Purses, across
the high-street, to stop all who did not unlaw-
fully associate themselves with thero^ from
imssing to the prison -gate, and with forc-
tiammers beat ou the door of the said prison, in
order to break it open ; and among the rioters
so planted as a guard, and at the prison-door,
and in divers other places, during the said tu-
mult and sedition, vou the said VVilliam Mac-
lauchlan, armed with a lf»chaber-axe, or other
oflensive weapon, was unlawfully and riotously
assembled with them : And when the magis-
trates of the city, as in duty bound, went in a
body toward the said prison, to disperse the
riotous and unlawful assembly, showers of large
stones were by you, or your accomplices,
pouied ppoa them ; whereby toioe of tbeai
were bruised, and all of theoOy under grea
terror, were obliged to fly, and save tbemsrivei
from the fury of^an armc^ mob: And farther,
yon, or vour accomplices, by burning torehfi|
links, whins, or other combustible matter, wil-
fully and mslicionslj set fire to the mid prison*
door, to the great danger of the adjacent
wootien houses, and other honsea and shops;
and having . bnmt and beat the same o|ieB,
seized the keeper, and by force and fear ex-
torted the keys of the rooms of the said urisoo
from him, and dismissed William Grinsell, im*
prisoned there for murder, James Ratdiff,
imprisoned for thef^, robbery, and bouse*
breaking, and divers other persons there, abo
committed by lawful warrants: And yon, the
said William Maclauchlan, having conceived a
deadly hatred and malice against John Porte-
ous, commonly called Captain Porteous, there
also confined under sentence of death, the
execution whereof, by the amiable |M)wer aid
prerogative of the crown to shew mercy tt
subjects condemned, had beep respited by her
sacred majesty the queen, then gvardiaa of the
kingdom, you, or your said accomplices, laid
violent hands upon him, with intent to mnnkr
and bereave himof his life ; and^havingdrigfed
him by the heels down the saiil tolbooth-stair,
crying for mercy for Cbrist^s aake, lengtbei*
ing out your cruelty towards him, alteraatcly
leil, dragged, and carried him, ftintiog and
falling on the street, to the Grasa-markel,
within the said city of Edinbnrgb, tbie place of
common execution, in derision of public jiu-
tice ; and making a staud at the galmws-stooe,
w here the gibbet is usually placed, you ooo-
sulted togolher in what manner to put him to
death ; aud about the hour of eleven, or iooe
other hour that night, having hurried him to s
dystcr''s tree near the said place, while in most
moving manner he was supplicating for a little
t^e to recollect himself, as a dying man, and
to beg mercy from God, you or your wicked
accomplices, renouncing all ('hristian compss-
sion, and even human nature, fixing a rape
about his neck, instantly drew him up upon tie
said tree ; and when he endeavoured to save
himself, by catching hold of the ro[>e with bis
hands, you, or one or other ofyour vile associates,
barbarously beat them down with a paddle, or
other instrument, and brutally struck him upon
the face with a lochaber-axe, or other weapon;
and wantoning in your wickedness, making
Inobe the rope that was fixed about the said
dyer^s tree, you or some of your accomplices,
let him down to the ground, and pulled him op
again, where he hung by the neck till he wsi
dead. All which detestable facts and crimes
uere impudently, wickedly and maliciously
done and committed, by the said dissolute aflid
disorderly persons, riotously and tumulluously
assembleil, in manner above descrilied ; andtlie
said John Porteous was cruelly murdered, it
the time and place aforesaid, in a ihmng and
outrageous manner, to the dishonour of Godt
the contempt of his majesty's laws and autba-
rity, and to the lasting infiuny of the baibaiaoi
for Murier and other Crimes.
A. D. 1737.
juMtmrv, rnu ou^hl lo i>c liuxlexetuplarilv
puiibhed witli DiB painii ol' ]«w, to Ihe terror uf
"' — ' it llielikein tiinecomiDg."
•Cliet»lu
knd bI«Mly actnn ; anil you were art anil pnrt | " 81 ildiclum aliqnoil reperiatur puaitilni (iTuri-
oTall, or nap ni' oilier, nl Ihe rarisaid crinirs, ^ bus legibiii, >n debcat rem ildinqueii* ex una,
Ufg^f itPil u arnresuid. X'liicli (acta, or part »cl *x oinnibu», »fl ex ali(|ua aorusari el oon-
nrrMf, ur your beiug art and pnrt Jn all or my I ilemiiati J" Gomez. ResoL Jur.Cit. lotn. 3, C. 1,
m lb* foresail] crimcii, lielnif foaud proven l<y j n. 98 ; and cerlaiu rulvsare cstablialied for je-
ibe vrrdict ul ail aasiie, before the Inrdijmlice I lerinlnink; wlien one trio) iIokh, or doci doI,«(-
pntral, jiuiice elf rb, lad cuinitiiuionen nl' I rlude ft act^und upon a diflereot ground 'at law.
...dt.; — — L. .... 1 1 1 Hm it (,„ uejgr Rubied, that tbe proseculoc
liaa it in bis power to insist osaitiit an nff^nder,
f«r any ciitne lie liai commilted, ibuugb tl«
ipecia facli afforded a ground (or a prusucutiu*
afadiirerstitDiturc.
i. The Court nould bnre been competeul,
thoiiifh tlie progecuiion hat! been for liigli Irm-
ion ; becfcusc tbough by 7" ^nn. her inAJetty,
her lieiri and succeuors, are emin^rcrcd lo
iaaue commiBsionB of Oyer and Terminer in
Scotland; yet il iapmiided, "Tbat tbcjuiliM
canrt. and uiber courla haTiii|( power to jud^
of liigb tre«HOii and misprision of treamn in
Seotlaud, ahall have tiill power and authority,
and are thereby rc^iuired, lo euquireolHll bi{;h
treasuni and misprtiiun of lii(;li Ireasou ; aud
pnxieEd, hear and dettrtinine. tba
whereof any persona sliaJl be in-
*d bel'uto them." — Hence, bad ibis be«ii a
trial for (reaaoo, tbe Court would haro bveii
e'lmpelenl, lliouuh another method ofproceed-
ing would have weD retjuieilfl.
9. I'lie indictment, as framed, does not
amoiinl to high treason. The chief aim of Iba
caDS|iirtitnrK ^ud tbeir aiaacinles was lo murdec
ciplaia I'ortcous. For this purpose Ibey arm-
ed, broke tbe prison, and committed the other
oAcnces set forth to Ihe minor proposition ;
therefore tbe conTOcallon being on a prirata
Bod particular drsijirn, it was not leTviog war
againil the kin^. In the Cass of Idesainger
and others, ii was agreed by all tile judgea,
that if tbeir iiileDtiou was 10 pull down two or
three particular bawdy-bousei, it was nut high
treaann; Hale, Keyling. In Uaniinarie'aCaw,
the chief article found lo be treason wan, iba
lerying war to pull down toectiog-huuics ii
( Court aDi^rued Ihe prisoner counsel,
leaded, Nut Guilty } and in point of fact
H •«■ furtb foc him, " That he was fnolmai
liilv WrniysB at llie time, aiid was sen
Jr Uilyahi|t tlie forenosn nf that day, ihi.
■ iiepiembtr. In Cnicieball aud Gogar
b'Tsail, and got dronk to auch a ileu
■belt he returned he was not capaMi
f tbe letter he bad received, but which
—j.-ta lu b« doiw by another.
^.The p^innel. Boon after lii» return froti
Owgie-ball, Weill from my lady Weniyss'i
knwe to .),d,[. Lamb's, no alelinudc in tbesamt
Mr, kalian linur after nine, Wbeii be eoler-
Mliamb's liouae be staggered with druuken-
WM> and was drained there till wilbin a •lu.irter
oTrievcii, and then went out, in order to gi
hb own hi'itse in tlie Canongste. That,
pMaang, he called at Mr. Ctiaie's, vintner, and
drank a cbopin of ale or two with the sei
litcrc i and betwixt Lanlb'a and Caesie'i
oac« or twice.
" Thai, strolling in hi* dninkenceis tbrough
tfaaalreci, be met with two bakers, who carried
Imib away with tbcCo tollwmob; and wbOhei
tbey pvl a locbobcr-axe in bis hand, or not, he
alOM Dot reniemlm ; but, from tbe computing
tka liinr, thu mob ha<t proceeded so fur ibst
oin was in tbeir bands on tbe sti —
iiingled with the rinlrr* ; that he
>«ili*e part in what remained, nor iudeeil
U Cftpabie. being oterpowered with liquor.
••That all Uiis while tbe pannel wju in bis
J iirery-habit, and went home In bis
i did not atiempi to fly nr absmnd next
It at any lime thereafter."
linl ol law ii was pleaded (or bim. That
m libelleil, vie. Ihe breaking prisoo by
I multitude, selling felons at liberty,
> putting lo dealb a man who bad been
4 hy ibe sotereign, amounted lo biijb
. and rniild only be tried as sucb, ac-
vording to tbe mode prescribed Iiy 7* Ann.;
ClM of I'rter Mnifinger*; Case of Daniel
OaDimsrie. f
Ana. 1. Tbe same ipttiti facti may be the
<lldalimt nl'dilTercnl ar.iion* ; and llip piuse-
MlKBiay insist upon what alalute or gruuuil
^Kfclis cbuaex. If a traitor iu rebellion kill
^■vtiia roqesty's suhjecta, theact w treason,
^^Bn be prosecuted as inch ; but at the
^IBtlflie il i* lelony, and mav be tried ir.
" — ' Civilians Ireal of Uiii ijuesliLia :
MT.Por
aid ofUcet
0 particular meeting.
Re|)IIed. By the lawi rclatire lo hi|rh Irea*
D, if it be not tried within a certain lime Ibe
guilt is abolished ; hut according lo tbe pruM'
culor's argument, after the crime has t*e«n
abolished as to the highest eRecl, it may be still
prosecuted uuder auolher denomiiuilion ; and
iLougb a man has been ab«olieU upon an ii>>
diclmeni for treason, he may be still tried for
1 lesser oRencc ; or if be has been absolved on
in indictment laid for a lesser uifence, he niaj
iflerwarda, on theaames/i'Yici^iicii, be indict-
ed for treason. All which is abtuni ; and wu
nvl allowable in ibis country, even before Iha
English laws as lo high treaion were extended
t'l bcolland ; c g. tbell in landed men befora
that time waa high Ireaaou in this country;
and therefore it could not Iw prosecuted betiira
an iaturiorcourt, Dorciiuldtbe protccutor re>
itrict hi* libel ; Mack. lit. Theft, s«ci. ii-
U^ •uppoHiiou iha trial could nmceed oa
tiiia iqdictmeut, it wat pleaded for the pauial.
lOOS] 14 GEORGE IL Trial of Captain Goodcre and M. Mahrni^^ [lOM
The Jory fband him Not Guilty; apon
liieb he wm dismissed from the her.
Act* Cb» Areskine. Alt. And. Mac^wal.
J. Campbell.
Id 1738, Thomas Liooing sko was tried far
the same offeoce, aod found Nol Goilly ky
the Jury.
•■
^00. The Trials of Sabiuel Goodere^ esq. Matthew Mahont,
and Charles White, for the Murder of Sir John Dioeley
Goodere, bt. (Brother to the said Samuel Goodere) on Board
his Majesty's Ship the Ruby : At the Sessions of Peace, Oyer
and Terminer, and General Gaol-Delivery, held in and for
the City of Bristol, and County of the same City, in the
Guildhall of the said City; before the Right Worshipful
Henry Combe, esq. Mayor of the said City, Michael Foster,
esq. Serjeant at Law, Recorder; and others his Majesty's
Justices of Gaol-Delivery. Begun on Tuesday the 17th of
March 1741, and continued by Adjournment to Thursday,
the 26th of the same Month. Published with the Approba-
tion of Mr. Recorder : 14 George II. a. d. 1741.
On Wednesday, the 18th of Maroh, 1741, a
bill of indictment was found by the grand in-
quest for the city of Bristol, and county of the
same city, against Matthew Mahooy and
Samuel Goodere, for the murder of sir John
Dineley Goodere; when Dr. Middleton (Mr.
Cioodere's physician) acquainted the Court,
That, in his opinion, Mr. Goodere was, through
bodily iodisposition, unable to undergo the
fatigue of his trial. But being asked by Mr.
Verridn ^of counsel for the king) whether the
priMMer's health would not permit him to be
0f6ttght into court and plead to his indictment;
and the doctor declaring bis opinion, that he
might be brought up, Mr. llecorder was
pleased to order, that he should be brought up
the next day, in order to plead to his indict-
ment. Accordingly, onTliursday the 19lh, Mr.
Goodere and Matthew Mahony were brought
to the bar ; when the Court proceede<l thus :
C/. of Arraigns, Matthew Mahony, hold
up thy hand ; Samuel Goodere, hold up thy
hand (which they severally did). You stand
indicted by the names of Matthew Mahony,
late of the parish of St. Stephen in the city of
Bristol, and county of the same city, labourer;
and Samuel Goodere, late of the same parish,
city and county, esq.* for that you, not having
* It should seem that upon the death of sir
John Goodere the prisoner became a baronet,
and if he could have proved that, he might have
sucoessfally pleaded in abatement to this indict-
ment See Com. Dig. Abatement, F. 19, F.
SS, «5. Indictment, G. 1, Hawkins PI. Cr.
lNM>k 8, cb. 1I3» atct. 105 cl i^« chap. S5, aact
the fear of God before your eyes, but beiog
moved and seduced by the instigmtion of the
devil, on the 19th day of January, in the 14tb
year of the reign of our sovereigu lord Gfotp
the 2d, by the grace of God, of Great-Britaio,
France, and Ireland, king, defender of the faith,
and so forth ; with force and arms, at tbe
parish aforesaid, in the city aforesaid, aod
coimty of the same city, in and upon one tir
John Dineley Goodere, in the peace of God,
and of our said sovereip^n lord the king, then
and there being, feloniously, voluntarily, aod
of your malice afore -thought, did male la
assault; and that }ou, the aforesaid Mat-
thew Mahony, a certain cord, of the ralue of
one penny, about the neck of the said fir
John Dineley Goodere, then and there felooi-
ously, voluntarily, and of thy malice afore-
thought, did put and fasten ; and that yon
the aforesaid Matthew Mahony, with the conl
aforesaid, (by you the aforesaid Mattliew Ma-
hony, so abiout the neck of the aforesaid sir
John Dioeley Goodere put and fastened) tbeo
and there him the aforesaid sir John Dineley
Goodere feloniouKly, Toluntarily, and of jour
malice afore -thought, did choaic and strangle;
of which said choaking and strafigliug of biin
the aforesaid sir John Dineley Goodere, by }'oa
the aforesaid Matthew Mabony in manner
and form aforesaid done and perpetrated, bt
the aforesaid sir John Dineley Goodere then
70 et scq. ch. 35. As to a plea in abatemeal
of a misnomer in a surname, see Shakes|>eare*l ,
Case as cited in the Case of Layer, ant^. vel.
16, p. 103.
for the Murder of Sir John Goodere.
A.D. mt.
pows
t« iiNtantlf lOrd i And llial you, llie
i ttimricl Oawlere, tlii'D ami iliff«
■ly, vutuiilnrily, nnil ol iliy malice
Diigbt, naa preseni, >uEin|j, abplttne<
itis, and inaiutaining' tlie alurvaaiil
* Alaliony in manner anil firm alore-
ioDtouily, vuluDtarily, auil oThisinslicE
lugbl the afurrsaiil air J"hn Diaeify
e 10 kill miiJ murilfr; audaa ynti ilje
ilUiew ftlaliony, and Hamuel Guodere,
ler and lurm aloresaid, the al'areMiil tir
'ineley Guodere tlxn and tliern fctuoi-
oliiniai'ily, antl nf yonr malice nfore-
I did kill and niurdir, agaiiisl tlie |ieace
iiid sovereign lurd tli« King, his crown
fArr. How gayest (liou, Mal'hsH Ma-
art thou (■uiiiy of the felony and
whereof thou aUndeat iudicted, or nol
—'MaAony. Not (;uiliy.
fArr. Cul|irit, bow wilt lliou bellied ?
}Hy. By God and my Country.
'Arr. Godaeiidlbecat^ood delirerBDce.
/ Arr, Ilow B«ya*t tboii, Samuel
t, ad tbou t^uilly of tbe felony and
wliereut' Ibuu flaDdeEl indicted, oruol
r
W Goedtrt. Not Guilty.
fArr. ColiHil. bow wilt thou be Iried?
4I Cuoilire. Oy fiiid and iny country.
fArr. God send ihee a Kooddeliieraiice.
Venum. Mr. Itecordei', 1 altcud a*
for the king uu this mt-taiicholy occa-
d it ia wilb no imall regrtt and cauuarn
f lime act in ibis blMliua ngainat my
sminrea, ivlieit under circumstancea
me of the iinsuuera at tbe bar ; and
mr, M kiiowini,' it alinuat iinpoaxible so
in A biiiineu iif ibia Eialure, U8 nol to
igfat on tbe one tide tn have done Ino
tnd on tbe other ion little : howefer,
Jiall, in llie courte of Ihii prosecution,
KIT to observe that mediocrity which ii
ceparable from buraane rainila; and if
be BO fortunate aa to conduct myself
nlial'acliua of yon, 31r. Itecoider, and
irt, I aball readily give up the rest, and
mjraelf with the tboii[.'bu of liaring
It ajuat discharge of my duly.
be priauners, Mr. Gootlere luid Mahony
ought proper 10 filead in chief tu their
enl, and put tbemaelvvs upon tbeir
(be onluiary coiirae of law ; and aa tar
be judged from outward appearance,
od«ie aeeniH able enough at present tii
I trial on the meriu or demerita of bii
and if >u>, we tor tbe kiug are ready,
part*, lu cuter upon our duty. (In
« band, if, ill ihe opinion of that learned
lan (Dr. MidJlMoD), Mr. Guodere in
lit coodiiian (through bodily weakue^s
ipoaition) lu b« brttught upon bia trial,
rbid we tbould lie fur pressing it on
ndi celerity, aa tu jirejudice him lu
; «f fail deleuce. But then, u we would
lAt Kcalcfiting bit trial, m acitber
would we be for giving into any aflMlcd delay.
I iberefore hope, tiir, aucb a day will be fised
tor the comiog-on of thia bukiueaa, aa tlial tbe
tra-fariiig part nf our witnetaes, whom at.
present public jualicc calls fur abroad as.wdl
as at liuiae, may be dispatched at due ltn«<'
ti>r the other neceasary aerrice of their king*
Mr. KtcordfT. I think we ought to pT<iceed
to the tlial immediateJy, unleis cauae be ibewn
to the contraay.
Mr. Frtdcrick, counsel for Mr. Goodere.
I appeal. Sir, to the doctor, whether Mr.
Gaodet«'4 case and vircumaiuicaii will at pre-
sent admit of il F
Mr, Recorder. Let Dr. Aliddleton be awom.
Dr. MiddUlon awora.
Mr. Vernon. Dr. Hiddlelon. I think. Sir,
you bare attended Mr. Ooudere (the prisoner
at tlie bar) during the coune of his illneai ; wilt
you please therefore to gice tbe Conrt an ac-
countof bis preBcntstaie of health ?
Mr. MiddUloa. Mr. Goodere has been my
pAlieol lor some time in a malignant fever,
which lell him last Sunday erening, and sine* .
that time he baa lieen growing better, and on
tbe nieadinghand; in hia frrer bis head was.
verv much diwrdered (aa at present happens T 1
to Le tlie case of many that are seized witb
ibis epidemical feter, the head being generally >
much effected iu most of them): 1 ibinkba
will not be able to bear the laiigue of bia
trial at present. If he ia put upon bia trial,
it will be an bardibip.
Mr. Recorder. It tbe case be so, that bis
head la disordered, whereby he ia rendered
leas callable of making bid defence, I think it
would be a piece if iohuinanity not to put off
his trisl. What if we adjourn it to llua day
leren- night P
Mr. Vcrnoa, I am heartily glad to fmd that ^
Mr. Goodere ia on the mending band, and bopa't 2
he will continue to mend ; his counsel seema ■
to think 'be may now come upon bis trial tt
yet, for tho honour of Or. Middleton, I would
nol press it on at this juncture. ,
Mr. Reairder. What doth Mr. Goodere biro-.
self say 10 itf
Sunivel Goodere. Ihopein eigblor nine days
to be be tier, or dead.
Mr. Recorder. I have proposed this day
Samuel Goodtrc. Whatever you please I
submit to,
Mr. Vernon. Dr. Middleton, Sir, aa you <
arc known to be a geutlemati of great boiUMr
and abilities, ne muy aalely depend upon yonri ^
account ; therclbre I should be glad to know •
bow noon (hutnaiily speaking) Mr. Goodere'S
bodily heeltli may admit of bis taking hie j '
trial. I know, Sir, you are a gentleman that ' '
has a great regard and care for your patients.
Dr. MiddUlon. I should rathcrcbooBatoeX>
cecd ia oare than tiill short of il.
Mr. Ver^toh. btii il is jmaiblo to have e«t <
HK)7]
U GEORGE II. Trial ofCajdain Goodere and M. Makony^ [lOOS
Cryer. Oyez ; you good men that are im-
paDoelled to try between our sorereigD lortl the
king and the prisoners at the bar, answer to
your names, and save your fines.
Mr. Recorder. Prisoners, yoa hafeeacbof
you the liberty of cballenging twenty of the
jurors, without shewing cause: But yon moit
now declare, wbetlier you will challenge se*
Feraliy or not ; liir if you do not join in yov
challenges, we must try you severally.
Ma^ny, I leave it to the captain to chal-
lenge.
CL of Arr. Christopher Bromadge.
Cryer. He sppears.
Ct, of Arr, Mr. Bromadge, to the book.
Cryer. Christopher Bromadge, look opm
the prisoners ; vuu iirisouers, look upon the
juror: You shall well and trnfy try, andtrae
deliverance make, between our sovereign locd
the king and the prisoners at the bar, whom
you shall have in charge, and a tme venfid
give, according to your evidence : So help yoa
God. ^^
And the same oath was'administered to the
rest, (which were sworn) and tbeir names sre
as follow : Christopher Bromadge, Isaac find-
rihh, John Merewether, Christopher UUj,
over care : Therefore, Sir, 1 would ask you,
whether, upon your oath, you do not think he
will be able, in point of health, to take his trial
in three or lour days?
Dr. Middletan. The captain may put him-
self on his trial now, if he pleases ; but i donU
think he is fit for it, u|K)n my oath. If it was
lef\ to me, 1 should desire the whole time the
Hecorder has mentioned.
Mr. Frederick. That is, to this day seven -
night ; we shall not be able to attend the Court
sooner. We hope the trial will be put off till
this day seven -night ?
Mr. Recorder. Let it be so.
CI. of Arr. Matthew Mahony, you stand
charged likewise* upon the coroner's inquest
for the same felony and murder ; art thou
guilty or not guilty*^?
Matthew Mahony. Not Guilty.
. CL of Arr. Samuel Goodere, you likewise
stand charged upon the coroner's inquest for
the same felony and murder ; art thou guilty,
or not guilty? — Samuel Goodere. Not Guilty.
Mr. Hecorder, The prisoners may withdraw.
Od Thursday the SOth of March, the Court
met according to adjourifmeut ; and, being
opened, the prisoners Matthew Mahony and
Samuel Goodere were brought again to the
bar ; and the Court proceeded as follows :
Mr. Shephard^ counsel for the prisoner
Goodere. Mr. Recorder, the prisoner Goodere
has in a great degree lost his hearing, therefore
desires that be may be biiiught nearer the
witnesses, that he may be able to bear what
thev say.
Vkv. Recorder. Let him come nearer. Ma-
hony, are you willing to come forward to the
bar r*
Mahony. Yes, my lord, I am hard of hearing.
Mr. Shcphard. He desires the same indul-
gence.
Mr. Recorder. If he desires it, let him come
forward too.
Mr. Vernon. Mr. Recorder, by this indul-
gence beiinv* moved for on the behalf of Ma-
hony as well as Mr. (jooderc, I presume these
gentlemen attend as counwl for them both, if
matter of law should arise.
Mr. Frederic/:. No, Sir, I do not,
Mr. Shephttrd, No, Sir, I tlo not.
CI of Arr. Cryer, make a proclamation for
silence.
CrycT. Oycz, Oyez, Oycz ; the king's ma-
jesty's justices strictly cliar;;^e and command all
manner of persons to keep silence, upon pain of
imprisonment.
67. of Arr. You Matthew Mahony and
Samuel G<iodere, now -prisoners at the bar,
these men which you shall hear called, and
will personally aopear, are to pass between unr
sovereign lord lue king and you, upon trial of
yodr several lives and deaths ; if you, or either
•f you, will challenge them, or any of them,
yoo must speak unto them as they come to the
book to be sworn, before they be sworn. Cryer,
Make BB Oyex, and call the petty jory.
James Wiudde, Joseph Gregory, Jobv Scon,
Isaac Bannister, sworn, William Engliiid,
(challenged) Francis Billow, (challenged), Wil*
liam Jones, Samuel Page, John Perks, Williia
Dyer, sworn.
*Ci. of Arr. Cryer, count these.
John Scott,
Christ. Bromadge,
Isaac Brodribb,
John Merewether,
Christopher Lilly,
James Wimble,
Joseph Gregory,
Isaac Bannister,
William Jones,
Samuel Page,
John Perks,
William Dyer.
G»
Cryer. Twelve good men and true,
tiemen, are ye all sworn.
CI. of Arr. Cr}er, make proclamatkyn.
Cryer. Oyez, Oyez, Oyez ; if any ooectl
inform the king's majesty's justices, thekiog'i
Serjeants, the king's attorney or advocate, fc«
fore this inquest be taken between our sovercigB
lord the king and the prisoners at the bar, of
any tcpason, murder, felony or other misde
mcanour, committed or done by the prisoDas
at the bar, or either of them, come forth, u^
you shall be heard, for the prisoners stand It
the bar, u|)on their deliverance ; and all per-
sons hound hy recognizance to prosecute tbeoii
or either of them, come forth, and prosecaiei
or you will forfeit your recognizances.
CL if Arr. Matthew Mahony, hold upthT
hand ; Samuel Gooilere, hold np thy niDs.
Gentlemen ofthe jury, look upon the prisonoii
and hearken to their charge ; they stand in*
dieted hy the names of Matthew Mahoov, bH
of the parish of St. Stephen in the city if
Bristol, and county of the same city, laboutr;
and Samuel Goodere, late of the same parijAi
city and county, esa. for that they not havisg
(as in the indictment before set forth). Upon tiS
indictment they have been lately uraignedi ife<
Jar the Murder of Sir John Goodert.
A. D. 1741.
tioio
ifOD faiTe set ernNy ptcacM not gfuilty ;
»r their trial* have put themselfea upon
nd Che country, which country you are :
cfamrre is, to enquire whether they, or
of them, be guilty of the felony and
sr iu nitnner and form as ihey stand in-
, or not guilty. If you find them, or
of theii), gnilty, yon shall enquire what
or chattels, lands or tenemeuts they, or
of them, had at the time cf the felony
itted, or at any time since : if you find
or eitherof ihcm,not guilty, you shall en-
rhether they, or eitherof them, fled for the
: If you find that they, or either of them
1 fur the same, you shaJl enquh'e of their,
ler of their goods, and chattels, as if yon
jond them or either of them guilty: If
nd them, or either of them not guilty, and
liey or cither of them did not fly for the
say so, and no more ; and hear yourevi'
. Vernon, May it please yon, Mr. Re-
', and you gentlemen that are sworn on
wry, I am counsel for the king against
risoncrs at the bar, who stand indicted for
order of sir John Dineley Goodere ; they
also charged on the coroner's inquest with
ime murder : and tlioutrh it is impossible
I man nature not to feel some emotioiks of
*ness at so afl*ecting a si^ht ns now pre-
itself at the bar ; yet, gentlemen, should
nh of this black and frighti'ul murder be
upon the prisoners (as from my instruc-
1 fear it nill) pity must then give %fay to
r and astonishment at the baseness and
rity of the fact and circumstnnces ; and
)rrow ought to be, that through the lenity
\ laws, the unnatural author and contriver
shocking a piece of cruelty, and this his
I accomplice in the rufiianly execution of
oiild be to share the common fate of ordi-
nalefactors. Gentlemen, yon perceive
laid in the indictment that* the prisoner
my strangled the deceased, and that the
ner Goodere was present, aiding and abet-
hira in that barbarous action, and so in-
d in the same guilt, and equally a princi-
n tlie murder : but, gentlemen, Mr. Itc-
T, J believe, will tell you, that the only
ir for your enquiry will be, wliether the
ners were concurring in the murder of the
ised, and present at the strangling of him ;
r so, whether Slahony, 31 r. Gimdere, or
ler in fact strangled him, it will in cousi-
ion of law lie the same thing, and the act
angling will be as much imputable to each
im, as if they had both assisted in putting
ml about the neck of the deceasefl, and
bis actual executioners; nor will it be
rial, whether they strangled him with a
■ handkerchief, or their huiids, so the kind
itb be proved. *And, gentlemen, as to the
\ set forth in the indictment, 1 have mat-
in my brief, for a very heavy charge
■I both the prisoners, hut distinguished
•t the prisoner Mr. Goodere with this
IL. XVII.
black chancteristic, that he was brother of tim
deceased, and, as such, bound by the ties of
blood and nature to have preserved his person
from vrolence ; and yet, gentlemen, I am afraid
it will appear, that bis brother died by his pro-
curement, and in his presence, which it the
same, in effect, as if he had perished by hit
hand. But as it wouhi ill become me to
aggravate in a case of this nature, 1 shall
only state to yoo the most material pasAg^
relating to the murder of that unfortnnate gen-
tleman, and leave the rest to come from the
mouths of the witnesses themselves. And,
gentleuien, (as I am instructed) there had been
a lonflf and very unhappy difference between the
deceased sir John and his brother the prisonerp
owing to various occasions : and amongst others,
to sir John's having cut off the entail of a large
estate in Worcestershire, to which Air. Goodere
(as the next remainder- man) would have other-
wise stood intituled, in default of r»ne of shr
John. Gentlemen, this misunderstanding bj
degrrees grew to an inveterate grndge ana ha-
tr^ on the part of Mr. Goodere ; which was
so rooted in his heart, that it at length worked
him into a formed design of destroying his bro-
ther,'and making away with him at all hazards
and events. The great difficulty was, how to
get sir John into his power, for he generally
travelled armed ; nor was it easy to get toge-
ther a set of fellows so base and desperate, aa
to join witli him in the carrying off his brother.
But, unfortunately for the deceased, the pri-
soner, Mr. Goodere, having been lately ho-
noured by bis majesty with the command of
the Ruby man of war, happened, in January
last, to lie stationed in King-road (as much
within the county of Bristol, as the (vuild-hall
where this court is sitting.) Sir John (who
was advanced in years, and very ailing) had, it
seems, been adviised to come to Batli for the
recovery of his health : and having occasion to
transact afiairs of consequence at Bristol with
Mr. Jarrit Smith, l\1r. Goodere took this oppor-
tunity of laying a snare for his brother's life, aa
you \vill find by the event. Ilo applies to Mr.
Smith, and taking notice to him of the misun-
derstanding between himself and his brother,
prctonds.a sincrre desire of reconciliation, and
desires Mr. ISmith, if |iossible, to make up the
breach between them; and Mr. Smith promised
to do his utmost towards effecting a reconcilia-
tion, an<l was as good as his word ; for, by his
interest and persuasions, he at length prevailed
upon sir John to see and be reconciled to his
brother, and sir John having appointed Tuesday
the 13tb of January last in the morning for
calling on Mr. Smith at his house in College-
Green, Mr. Smith soon mode his brother, Mri^
Goodere, acquainted therewith ; and no sooner'
was he informed of it, but he begiHi to take hia
measures fur the executing his wicked scheme
again!<t his brother's life. For on Monday (the
day before sir John was to bc^t Mr. Smith's)
Mr. Goodere, with the other prisoner Mahony,
(his inseparable agent and companion iu every
stage of litis fatal business) went together W
• T
101 13 14 GEORGE 11. Trial qfCaplain Goodere and M. Mahony^ [1013
the White Hart, an ale-house near the foot of
the Col legfe- Green, in the view uf, and almost
opposite to Mr. Smith's, in order to see if it was
a fit place for their desperate purpose: and
finding it to be so, Mr. Goodere commended
the pleasantness of the closet over the porch,
■nd said he would come and breakfast there
the next day. And accordingly the next niorn-
ing(which was Tuesday the 13th) Mr. Goodere,
with his friend Mahony, and a g^ang of fellows
belongin(;f to the privateer called the Vernon,
whom thev had hired to assist them in the way-
laying and seizing of sir John, (but whom, one
would have thought, the name of that gallant
admiral should have inspired with nobler sen-
timents) came to the White Ilart, where hav-
ing ordered they should have what they would
call for, he went himself to breakfast in the
closet over the porch, from wivcnce he had a
full view of Mr. Smith's house, whilst the
others posted themselves below on the look-out
for sir John ; and it was not long before he
came on horseback to Mr. Smith's : but his
stay was very short, being obliged to go to
Bath ; however, he promised Mr. Smith to lie
in Bristol again by the Sunday following. He
was seen from the While Ilart by Mr. Goodere
and his spies upon the watch ; but having a
servant, and riihng with pistols, they did not
think proper to attempt the seizing of him then ;
hut, as he rode down the hill by St. Augustine's
back, Mr. Goodere called out to Maiiony in
these words, ** Look at him well, Mahony,
and watch him, but don't touch him now."
And in fact, gentlemen, the prisoners and their
companions tollowed and watched sir John a
considerable way. Afterwards Mr. Smith ac-
quainted the prisoner Mr. Goodere. that his
brother was to be with him on the Sunday fol-
lowing ; and little thinking that an interview
between brothers could be of a fatal tendency,
advised him to be in (he way, that he might
bring them together : which udvice the pri-
soner observed with but too great punctuality,
taking care, in the interim, to lay su( h a (ruin,
as that it should he hardly possible for his bro-
ther to escape I'aliing into his hands. He or-
dered the man of war's barge to Ijg sent up for
him on the Sunday; accuidinifly it came up
about S2 or o that aiicmuon ; of which Mr.
Goodere being inl'ortned by one Williams a
midshipman, whom he had ordered up in it, he
enquired of Williams, if he knew the river, and
the Brick-kilns goinii^ down it ? And Williams
telling him he diil, Mr. Goodirc ordered him to
get all (he boat*s crew together, and be sure to
Klace the barge at the Brick-kilns, and leave
ut two or three hands to look atler the bar^e,
and bring all the lebt of the men to the U'hite
Hart ale-house, and wait for him there, for he
had a certain person coming on board. Accord-
ingly, ircntlemen, Williams and most of the
barge- men came to the place of rendezvous at
the White Hart, where Mahony, with several of
the privateer's men (I Itelieve all, or most of the
eam\gang that had been there on the watch
tht lu«^ay before) wn alto met by Mr.
Gooderc's orders to way-lay and seize ar Johiiy
and 6too<l at the window on the look-eat, u
order to watch his coming out of Mr. Bnith'i.
Thus the ambuscade being laid, the prisoner
Mr. Goodere goes to Mr. Smith's about three
ill the afternoon (the hour at which sir Joha
had appointed to be there ;) be went directly
towards hfe brother sir John, and kissed hia
(what kind of kiss it was, will best appear bj
the sequel,) and observed to biin with an odIf
ward shew of satisfaction, that he looked is
better health than he had formerlv done. Mr.
Smith was so good to drink friendship and re>
conciliation between the two broihers: Ur.
Goodere pledged it in a gluss of wine, which be
drank to his brother sir John ; and sir Johe
(being under a regimen) offered to pledge bia
in water, little thinking his brother designed to
end their differences, by putting an end to bii
life. But that, gentlemen, you'll soon see wis
the sole end he had in view ; for sir Jobaii
about half an hour taking his leave, Ur.
Goodere was following him : Mr. Smith alopt
Mr. Goodere, saying, *' 1 think 1 have doac
great things for you." Says Mr. Geodov,
*' By God, this won't do;" and ioimediatrij
followed his brother : and meeting some oftlM
sailors whom he had posted at the White Hiit^
says to them, ** Is he ready ?" and being es*
swered, " Yes," he bid Uiem make Catip
Mahony, and the other fellows who were m
the look-out at the Whi(e Hart, seeing sir Jobs
go down St. Augustine's Bank, immediakly
rushed out, and (as they had been ordered by
Mr. Goodere) seized sir John as their prisoser.
Just then Mr. Goodere himself was come up,
and had joined his companions, and thtwti
himself their ringleader: for (according to my
instructions) he gave them positive nmn to
carry sir John on board the barge, and tbej
but too exactly observed the word of comnusd.
They hurried on sir John with the utmost fia-
lence and precipitation, forcing him alon?, asd
even striking him in the presence of his bro-
ther, and (as the Romans use<l to do tbdr ma-
lefactors) dragged him through the public vty.
The poor uniortunate creature made rcpetled
outcries of murder, that he was ruined and on-
doue, for his brother was going to take awaf
his life. He made what i-esistance he coohI
and called aloud 'for help, but all was to so
purpose. Several persons indeed followfJ
them, and asked vihut uas the matter? Bat
they were answered by Mr. Goodere and hii
associates, that the person thev were hauliflf
along was a murderer, had kifled a man, vi
was going to be tried for his life. Tbenotl
of this ruffianly crew beinnr armed (it 8Mo4
with bludgeons and truncheons, obliged tbi
people who came about to keep off, hokling if
their sticks at them, and threatning to knock
them d6wn. Gentlemen, uhen thev bad tha
forced sir John towards the end ot' the reps'
walk, Mr. Goodere (who all along bore
com|>any , and animutetl iliem as tliey pmd
along) bid them nidke more dispatch, and awsi
their pace. Accordingly they took op tf
] for the Murder of Sir John Ooodere.
A- D. 1741.
[1014
and carried him by main forc^a consi-
s way, then set him down asfain, and
1 and hauled him along, till they had
m to the slip (opposite to the King's
Sir John cried out, ** Save me, save me,
y are going to murder me." There the
came up, and the prisoner ]V|r. Goodere
is brother forced on boani, and with
ly and the rest went also into the barge,
in then called out, '* For God's sake rnn
Smith, and tell him I am going to be
"ed, or I am an undone man." And
out that his name was Dineley, Mr.
re stopt his mouth with bis hand, to
t bis telling his other name : And though
ID was in an ill state of health, yet his
tearted brother forcibly took bis cloak
ff bis back, and put it upon himself:
ifing thus got him into his power, he
1 the men to row off, telling his brother,
ow he had got him into his custody, he
take care of him, and prevent bis maiking
vith his estate. But, gentlemen, in fact,
B did bethink himself concerned iu what
bn did with the estate, that be was of
1, no act of sir John's could affect it
than bis life ; and that it must neces-
Jevolve to him (as the next in remainder)
brother's dying without issue. And this,
men, he declared to Mr. Smith but a few
lefore. And indeed his brother at once
hat kind of prevention it was he meant ;
ow, says he to Mr. Goodere, (soon after
ng forced into the barge) yon intend to
s* me this night, and tberetbre you may
ft do it now, as carry me down." Poor
man, bis heart misgave him, that the de-
f this base, and daring outrage was to
the ship his prison, one of his cabbins his
iter-honse, and the sea bis grave, and
Mne be made it his choice to be thrown
ard in the river (xv here his body might lie
rather than buried in the ocean. The
ir Goodere denied, indeed, he had any
!esign, but yet could not refrain from the
exhortation to dying persons, that he
have him make his peace with God. At
edclifft the privateer's men were set on
and 1 think about seven in the evening
^e reached the Ruhji^ man of war, then
g-road. Mr. Goodere had in their pas-
.Iked of btceiling and purging his brother
^ him to his senses, pretending he was
man ; for he knew very well that very
bis own men would have assisted him
I an enterprize, had they not been under
r that his brother was really mad. And
> ap such a notion, as soon as he had got
I board the Ruby, he hurried him down
[ think, they call the gangway, into the
t cabbin, making an apology, that he
oogfat a road fellow there ; then ordered
!ti to be clapt on the cabbin*door, for
knug bit prison more secure, which was
JBgly done. And now having made his
ft priaoner, bis next step was to destroy
B« took Mfthoo J with nyn into his own
cabbin, and there tbe cruel means of murder*
ing his brother was conqprted between them.
They agreed to strangle him ; and engaged one
White (who is hereafter to stand* to the justice
of his country) to assist them in the butcliery.
I should have told you, gentlemen, that it is
Qsual in ships of war to place a centinel over
persons under arrest ; and accordingly one waa
placed by Mr. Goodere's orders, with a drawn
ciitlas in his hand at the door of tbe cabbin
where sir John was confined. This centinel,
about twelve at night, was relieved by one
Bucbannan. It was impossible foi^ the pri*
soners to put their wicked design in execntioOf
whilst this Bucbannan remained at tbe cabbin
door ; so, to remove that obstacle, Mr. Goodere
gf^er having been in close conference with
ahony and White) comes ' down to the
purser's cabbin, takes the cutlas from Bnchan-
nan, and orders him on deck, posting himself a^
tbe door of the purser's cabbin, with the drawn
cuthM in his hand. I shall open none of the
circumstances disclosed by Mahony in his con-
fession, as being no evidence against Mr.
Goodere, but it will be made appear to you in
proof, thKt Mahony and White came to tbe
putaer's cabbin whilst Mr. Goo<lere stood posted
at the door of it ; that they were let into the
parser's cabbin by Mr. Goodere himself. Ma-
hony in particular was seen by one Macgnineaa
(who kept watch in the gun-room) to go into
the purser's cabbin, Mr. Goodere at the same
time standing centinel at the door of it, and
waving his cutlas at Macfjuiness, to make him
keep back. He did so ; but Mr. Goodere waved
the cutlas at him a second time, and bid him
keep back. Then, gentlemen, it was that Mr.
Goodere and his two accomplices effected the
cruel murder of his unfortunate brother. Ma-
hony was heard to bid him not stir for his life ;
and then in conjunction wiih White, whilst Mr.
Goodere stood watch for them at the cabbin
door (which Mr. Reconlcr will ttll you was the
same as being actually within it) fell on this
unhappy gentleman as he lay in the cabbin:
And one of them having half throttled him
with his hands, they put a rope about his neck,
and at length strangled him. Great were hie
ngotiies, and long and painful tlie conBict be-
tween life and death. He struggled violently,
and kicked against the cabbin, crying out se-
veral times very loud, " Murder I must 1 uic !
Help, for God's sake ; save my lile, here are
twenty guineas, take it :" For he well knew
they were stranp;ling him by his brother'*
orders, and therefore offeretl them a bribe to
spare his life ; but the ruffians were reitntlesa
and inexorable. The ship's co<»per (one Jones)
and his wife, lying in the adjoining cabbin,
heard his dying out-cries, and the noise occa-
sioned by his kicking ; his crie» too were heard
by others far beyonti the cabbin door. Nature
at length gave way, and he expired under these
cruelties. Then 'Mahony called for a light,
that they might have all the evidence of their
eye-sight that sir John waa actually dead ; aRil
(whicbif ftiboGkiBgcirgunittftiiccittUie case)
1015] I4f GEORGE IL Trial qfCajdain Goodere and M. Mahony^ [1016
Mr. Goodere luaiselfhanded them in the candle
an that occasion. Buchannan perceivinir the
li^^ht disappear, was coming to him %vitb an-
other; but Mr. Goudcre waved his cutlas at
him to stand off. 8uch, gentlemen, was the
fatal conclusion of this tragical business. What
was seen by the cooper and his wiie aflcr the
candle's being handed in, with regard to
rifling the deceased, 1 choose shall ci)inc from
their own mouths. The murder being thns ef-
fected, Mr. Goodere locked the door, and with*
drew to his own cabbin ; Mahony and White
were, by his order, put aboard the yawl, and
tent to Bristol. They did not fly Uie city,
gentlemen, depending that their iellow-mur^
derer would some -how smother this deed of
darkness, and take care of their secui-ity for the
sake of his own : But Divine Providence or-
dered otherwise. The honest cooper, though
he durst not give the alarm whilst the murder
was committing, for fear of sharing the same
late with sir John, yet as soon as he could with
safety, made a discovery of the whole that he
had heard and seen. It was concluded Mr.
Goodere had made away with his brother,
whicli too evidently appeared on the cooper's
forcing open the purser's cabbin door where sir
John lay murdered, and thereupon the cooper
had the resolution to seize the murderer, who
remained on board (though his captain). He
pretended innocence ; and when brought by
warrant before Mr. Mavor, and other of the
city magistrates, publicfy declared, he did not
ilien know that his brother was murdered, and
went so far as to deny his having had any
hand in either the seizing, detaining, or mur-
dering him. But, gentlemen, if my' iiistnic-
iions don't mislead me, we shall flx the thing at
least as strongly upon Mr. Goodere as ^Uahocy,
nnd more strongly upon them hoib tb&n 1 aln
willing to open it. We shull therefore call our
witnesses, and, upon the whole of the evidence
on both sides, appeal to your judgments, and
to your consciences, whether both the prisoners,
hy the ])arts they bore in this horrid action,
have not forfeited their lives to the justice of
their country as accomplices in guilt, and prin-
cipals in the murder of the unfortunate sir John
Dincley Goodere.
Mr. S/ivphurd. Mr. Recorder, 1 beg leave,
hcfore the wiUicsses are examined, to say, that
there are a great many circumstances in tlie
case laid before this court, and 1 don't know
how materia] it may be tor the witnesses to with-
draw, and not be in the heariti^ of carh other
during the time of examinatiuu ; 1 submit it to
you, as is usually doneiu casts of this nature,
whether it cugiit not to he done in this case,
where it appears from the u'entlciiian's oiwn
openini;, there are variety of circumstances. 1
doubt not, iSir, hut that you will see equal jus-
tice done between the king and ilic> prisoner.
Mr. lleconier. It cannot be iusisied nu as a
matter of ri^ht, that the witnesses he examined
npart ; but it is generally so ordered, if it is do-
siretl. I hope, bir, you will observe too, that
ibe prisoner bath m ijgbt to beheaiti hy (u»iin-
sel, unless in matters of bw. If any web
maitcr arise, 1 shall be ready to hear you.
Mr. Vernon, If Mr. Sbephsrd moves this u
a matter of right, 1 would just remind him of
%vhat lord chief justice Treby says in Peter
Cook's trial,* that it is not of necessity tliat tlit
witnesses should be examined apart at the in-
stance of die prisoner, though an indulgcses
generally granted. Sir, the crown, periiaps,
has a right to such examination, but not tbt
prisoner We have a great number of wit-
nesses, all of whom attend here on the pnUie
service (and some of Uiem persons of figure ;)
and it would, I doubt, be casting a ssrt of
blemish on their credit to examine tuem apart.
Could that geiiili^man shew the least glinuner-
ing of suspicion as to the fairness of our wit*
ncsses, tliey ought injustice to withdraw ; bat
as they are free from the least imputatioB is
that respect, I see not why ihej abouM bs
incommoded, and hope be will not coolesd
for it.
Mr. Shephard, I own it is not of neoesnty
that the witnesses be examined apart in frfosr
of the prisoners, nor do 1 intend to ihrow aay
imputation on the witnesses ; but by Mr. Vei^
nou's opeuing, some of them appear to be wit-
nesses who were concerned in taking away ths
deceased gentleman to the ship, and all Ibm,
I suppose, are intended to be called as wit-
nesses. I own it is a matter of indulgeoer,
and I dare say. Sir, that you will indulge a
prisoner, in these unfortunate circumstaiicei,
the benefit of making liie best defence bt cat.
Mr. Recorder, Let the witnesses withdnw.
Officers, clear the way.
Mr. Vernon. We hofie, Sir, it is not intendt-d
that all our witnesses in general should with-
draw without distinction.
Mr. Jarr'U Smith, (Solicitor for the prosen*
tion.) We desire there may be a room for our
witnesses, where they shall be tugetlier, or I
may lose half my witnesses. I am myself t
witness, Mr. Recorder, must I withdraw ?
Mr. Recorder. No, you shall not go oot-*
Who do you call first, Mr. Vernon ?
Mr. Vernon. Cryer, call Thomas Cbamkff^
layn, esq. [I\lr. Chamberlayn sworu.] I thiak,
Sir, you have been for some time acquaiateil
with Mr. Goodere^ the unhappy gentleman al
the bar.
Chamberlayn. A late acquaintance.
Mr. Vernon. Pray, Sir, will 3'ou giveso ic«
count to Mr. Reconler and the jury, whether
Mr. Goodere, at any time, and when, denied
your interposition with Mr. Jarnt Smith !•
bring about a reconciliation between him asd
his brother sir John Dioeley Goodere ?
Chamberlayn. Yes, Sir, he did. The ctp«
tain applied to me to go to Mr. Smith to inlcf*
pose for him with sir John ; and I did apply.
Air. Vvnwn. Prav, Sir, how long was it be-
fore this unhappy aii'uir happened?
C hambttlatjn. About three weeks, I believe.
* Sre vol. IS. p. 348. See too Vangbn^
Case, vol. 13, p. 49^
'^r the Mnrdtr ofHir John Oooderf.
A. D. 1741.
Mr. Vfrnrm. And ilid Mr. Stnitli uiideruk«
llial Rood Dtlured ofif e ?
C'lumUriayn, Mr. Huiilli uid, ha ilioul:! Iw
MKilj la i|o It, ami prninised me to do nil lia
•MiU in iha aflaif .
Ur. FtroiOt. H'bru yiiu applied to Mr.
9aiili>, were you aloue, itr wus Mr. Gonkre
"* sAerlo'/n. I went firsl alone j nftprward*
1 Onodere neni iviilinie tu Mr, Smith'*
. H'hnl WHB tiie ocr.Btiuio of jour
iii^rt»>lr.SmlU|-|';-
CiamUriai/H, To Inlrett him In uw his
«l office* lu ifM B ncDneilluiiiiB brtween ilr
■ and ilircapiBin.
''.Vtman. Ite pl«as«i1, Sir, tnl^ll II* what
I m thai occsHioii, and ivhellier Mr.
MB aci)Uaialed Hr. Smith wilh (lie naiure
I iniraoderBlanding betweeo him anil hi*
m^iayn. Yes, Sir ; ihst they had both
Jk lair a great irhile, and speot a ^rcal
■money, and tlierelhre Mr, Good^re was
" have Mr, Jnrril Sinilli to reconcile
r Iwlwecn them, (o prerent the roiD
uily, oud many laoTe such espret-
Mr. Jar
Mr. Ycrnon. Mr. i^diith, will you give an
■oeoimtur irbai you know ul' this folal husi.
^Kfp^h. Some few veeks before Ibid mnr'
^HUMppciird, Hr. Cihsiitlwrluyii ajiulieit to
^^Mnd laid me, I.Sat Mr. (ioodere (ibt pri-
Hpvr at the bar) desired thai I would use
^Kf vtmuit oodeavour niih sir John Ditieley
n»ur!i're 10 he IVifoda aii;l recoiiuiled with Mr.
Uouriiue. snd that I would suffer hira to hrin^
Mr. Gvodcre lo my house, i told him, I ol'leo
■1 *ii Juiin say, ibat tbere bad been warm
ICi between ihem, but would make use of
jr erkdetfonr* to reconcile Ibem, and that
kpily they should live in hatred, as tliey
BMv tbi only two brothers. Some time after.
Iff. Chnmberlayn brought Mr. Uuudere to my
IMsim, where ihry siiud about a quarter of an
baof, when Mr. Goodere gave me Ibanka lor
lb* pratnisB 1 hod mailo tij Mr. Chombertavn,
Uil lio then desired I would ilu all I couid to
CHUOte a reoondliatioD, I told him, I sboidd
glad lo be a happy inslrumeiil of iliat Hort ;
■m4 ibal tW first lime I saw air Ji^n 1 would
■lb W kim on Uie afTiur, and eiidcaioiir to
■A W blm to meet Mr. tioodere. 'I he
Msnid, Ifanvmanin Bui;land could do
Icocdd. I toll] him, I hoped to succeed,
ChBDiberlnyn and Mr. Uoodure weot
•■my. Some little ttma aRer they were gone,
I WW air John, andlold bim, tbal Mr. Goodere
bdapplicd Id lue lo do all I could in reconcile
Iheai. Hir John secined 10 speak much Bgniust
h at iirst, and thought it would bo to no pur-
IWM i tat ibsl he hnd bpeli a real friend to the
cafttAia, who bad nsed him tery ill ; but at
^tmk%mm |iltnn«l to paiaa eMopUmwuen
I. I cannot refuse yon anyibir^
me. He llien mentioned srieral
Lbings the captain had said ; and in parlitjolat
lAld loe, that at the death of sir Edward
rioodrrc bl) father, Mr. Goodere ibe priioner
bad placed several pcrsoiw in the bouse wber*
liir Eilward lay dead, in order lo do bim som*
iiiischiMlj and be apprebendi.-d lo lake away bit
life,
Mr.
Court,!
rrofe*
Mr, lircoriUr. ll is not evideuce, but per-
haps it is introductory losomelhinff Mr. 8milli
bos fiuiher lo say. if it bv noi, it should not
Lave twRti mentioned.
Smith. And tbat be bad endeiruurnl bt
set aside ■ common recoTery, and made stroDg
applicatiou to the Court of Common Pieu tw
lb at purpose.
Mr, Shepkard. Whether this be eti>)«iwe, I
insiti upon it in point of law Ibat it ia not, aad
it may hare an eflect on the jury.
Mr. Rteorder. t will lake noiice to the jury
what is not eildence. Go on, Mr, Sintlh.
Smith. Aftar sir John hul repealed sercral
•lories of this snit, he enncIudeJ at last (as 1
told you before) and wby, Mr. SuiiUi, if yuu
a*k it of roe, I c^n't refuse. I saw Mr. Good*
ere soon atler, and lold him, I bad seen si«
John, and talked wilb bim, and be wns nlessed
(o lell me, that be would see him, and bid dm
conlriie a eonienieot place to bring tbvm lu-
areiber. I lold Mr. Goudereabout Ibe allempt
Lo set asi<le the rrcovcry. I wonder, naid Mr.
Ooodi^i'e, he should mention any thing of ibat,
Tor I can set it aside wben 1 please. I told
liim, I thought he could not ; lor. laid I, I
hare bad a fc""d opinion on it, and am to lend *
large sum of money upon ibe Worcestersbirfl
estate. He said, 1 wonder that uny body will
lend him money npou ihat estate ; 1 au nelt
inremaiuder, nud tliey will run a risk of lusiu^
Uieir money, I doassurayou; and he canaot
borrow 0 s'billing on it wiiliout uiy conieot ;
but if my brother wat reconciled, tbcii, if wa
wanted money, we might do it to(reiher, for be
cunnot secure il alone, lie told me, that h«
ahoutd lake it as a great farotK, if I could fix a
time as soon as I could to bring Ibcm togelher.
^ioou afler I saw sir John, and be told me ha
was rery deaf, and was adviwil to ^o lo Bath,
and Iben appointed lo he will) me on Tuesday
lliu ]3ih of January \n\ in the morning, when
lie wnuld Ulk with me about the biiaiiiess of
■dtancing tlic money on his estate. Ailer this
1 saw Mr. Gnudere, and laid him that I had
seen his brother ; tbal ha waa to be with ma on
Tuesday the I3ili of January last, and desired
him lo be in ibe way, lor sir John was alwaya
very punctual to bis appoinlnieat ; and if mi-
ll lotd me ho would be in Iba
wiy; and on the Tuenlay morning Mr John
came lo nieon hunehackjnst alighted, and cama
LDlo iny ultiDC, I Kked ilUB lo lU ilswi^ nliwh
1019]
14 GEORGE . 11. Trial of Captain Goodere and M. Maliony^
he refused, tftTingf his head was bad ; that he
must go tor l^ath, having^ been advised to ^o
there for some time, and then he did not doubt
but he should be better. I told sir John, tliat
his brother knevr he vras to be in toivn, therefore
hoped he would sit down a little, for that I had
promised him to \mx^ them together. He said,
I can*t now ; but you shall see me again soon,
and then I may do it. I asked him, When
shall I see you again, to finish the business you
and I are upon, the writings are ready, name
your own time, the money will be paid ? He
appointed to be with me on Monday morniog to
settle that business ; and said, I shall come to
town the Saturday or Suudny before, and when
I come I wilt let you know it : he then mounted
his herse and rid off. Shortly aflcr (as I was
going to theTolzey) at, or under Blind-gate, I
met BIr. Goodere, and told him I was glad to
see him, and that his brother had been in town.
He said, he had seen him, and thought he
looked better than he used to do. I told Mr.
Goodere, that his brother had appointed to be
with roe Monday morning next on business,
and I expected him to be in town either the
Saturday or Sunday before. 1 then had many
compliments from Mr. Goodere, and he said,
how good it would be to make up the matter
between him and his brother. I heard nothing
of sir John bein^ in town till Sunday the loth
of January last m the morning, when he sent
ma a letter to let roe know that he came to
town the nigut before, and wonld be glad to
call upon me at any time I would appoint. I
sent him for answer, that I was to dine from
horAe, but would return, and be at home at three
o'clock that afternoon. And as I was passing
by, I stoptthe coach at captain Goodere's lodg-
ings in Princcs-slreet. I asked if he was at
home? Found him alone, and then shewed
him sir John's h tier. He read it, and asked
the time I appointed. I told him three o'clock
that afternoon. Said he, I think my brother
writes better than he used to do. 1 said, Mr.
Goodere, I think it wonld be best for you to be
accidentally on purpose at that time nt my
house. No, says he, I don't think that will
be so well, I think it would be better for you to
send for me. 1 returned to my house, and my
servant told me tiiat sir John had called, and
that he would be hefe again presently. Whilst
my servant was telling this, sir John came in ;
I took him by the hand, and asked him how
he did ? 1 thank God, says he, I am some-
thing better ; and after I have settled this affair
with you, 1 will go to Bath for some time, and
then, 1 hope, I shall be better. 1 said, captain
Goodere is waiting, I beg you will give me
leave to send for him ; you know you said you
would see him. With all my heart, says*^ sir
John, I know 1 gave you leave. I then sent
down a servant to captain Goodere's lodginsfs,
to let him know that sir John was with me, and
desired him to come up. The servant return -
ad, and said. Here is captain Goodere ; » on
which 1 said, sir John, please to give me leave
to iotoKJl^ca your brotbsr. Ut gar a ina icava :
captain Goodere came in, went din
kissed him as heartily as ever I had
two persons who had real affection
the other. 1 desired them to sit do
John sate on one side of the fire, i
tain Goodere on tlie other, and I sati
them. 1 called for a table and a
wine, and filling a full glass, I said,
give roe leave to ilrink love and fi
Ay, with all my heart, says sir .
don't drink wine, nothing but wat
withstanding, 1 wish love and ft
Captain Gooilere filled a bumper, am
it, spoke to his brother, and drank
friendship, with his brotlier's hea)
sate some time, all seemed well, and 1
I could have reconciled them. The c
ont of the bottle, captain Goodere
the cork in his hand, nut it into the
the bottle, and struck it in very hard,
saifl, though sir John will not drink w
and I will^ No, says captain Goode
drink water too, if 1 drink any more : i
was no more drank. After tuey had t
veral things (particularly captain Gc
the pleasantness of the situation of the
Herefordshire, and goodness of the
a very pleasant and friendly way,
rose up, and said, Mr. Smith, %vhat tin
you have roe be with you to morrow n
I appointed nine o'clock. He said,
I wish you well ; then said to me,
with you half an hour before. Sir Jo
down the steps ; the captain was folio
stopt him, and said. Pray don't go, ca
you and i drink a glass of wine. ?
now, 1 thank you. Sir, said he. 1 th
1, 1 have done ^reat things for you. H
a little, and said. By God, it will not t
in a very short time the captain wi
nimbly down the steps. 1 followed hi
door, and observed him to go after \
down the hill ; and before he turned the
yard wall, to be out of my sight, I
some sailors come out of the White-1
house, within view of my door, and
up to captain (Toodere. I heard him
he ready ? (1 thoufifht he meant the b<
said. Yes. He bid them make haste
they ran very fast towards the lone
one of them having a bottle in his hau
tain Goodere went very fast down the
had it not been by mere accident 1 slio
followed him, (but some people thini
well 1 did not) for 1 promised my wife 1
to the house where we dined in Uuecn'i
where I went soon after.
Mr. Uecordcr. Mr. Smith, did the
toward the lower green ?
Smith. No, Sir; hut some towards t
on St. Augustin's back. Sir Juhn w
way, and captain Goodere followed h
the men who came out of the alehoi
towards the lower green some of them.
5 o'clock in the evening, as 1 was ri
the hill towards the College- green, I i
a soldier looked bard at ine into tba oi
I ^ the Murder of Sir John Goodere.
A. D. 1741.
[IQSf
lad sometbiDgf to say, aDd seemed to be
ODfusion. 1 walked into the court, the
witb me, and tben be said, I am in-
I, Sir, your name is Mr. Jarrit Smith.
ays I, it is. (What I am noiv ^oingf to
»Ir. Recorder, is what the soldier told
He told me, that as be was drinkiofif
friend at the Kioufs Head ale-bouse at
me-kilos, be beard a noise, and ran out
what was the matter, when be saw a
dressed (as be described) like sir John's
Vernon, Pray, Sir, bow was sir John
\?
'k. Sir John was dressed in Mack clothes,
1 a ruffled filiirt on, a scarlet cloak, a
?el?ei cap (for the sake of keeping* bis
arm) and a broad-brimmed hat flapping.
Bcribed this exactly, and told me like-
hat tlie captain, of the man of war and
!W bad got the person into custody, and
ce bad put him on board the man of
barge or boat lying near the Slip, by the
I liead ; that the gentleman cried out,
lod'ssake, if you have any pity or com-
D upon an unfortunate man, go to BIr.
Smith, and tell him how I am used: and
le captain heariug him cry out, stopt his
I with his hand.
Recorder. What did the soldier desire
\?
ik, Tlie soldier desired me to enquire into
that be did not know tb^ intention of
olf a gentleman in that way.
Recorder. Did you do any thing on that
t of the soldier ?
th. Yes, Sir ; it immediately occurred
, that sir John, when be left my house,
e that be was going to his lodgings. I
0 his lodgings, (which was at one Mr.
mt's near the mint) 1 there asked for bim,
elated the story I bad heard ; they told
!y had not seeu him since be went to my
Vernon. Mr. SmKh, Sir, will yon in-
ks by what name the untoftunate gentle-
you are speaking of) was commonly
ih. Sir John Di&eley Goodere ; his mo-
as a Dineley, and there came a great
from her side to bim, which occasioned,
og called by the name of Dineley.
Vernon. When sir John went from your
on Tuesday, was he alone, or had be
tendant« with bim ?
\h. Sh* John was well guarded ; he had
, and I think his servant had pistols alsb.
Vernon. 1 think you told us but now,
r John was to l>e with you on the Sun-
pray, when did you let Mr. Goodere
it, Sir .'
!A. I met captain Goodere that very day
id gate, and told him of it ; and be said,
1 met bis brother biniKelf.
Vernon. Pray, Sir, did Mr. Goodere teH
o whom the estate would go on sir
Smith. Yes, be has oflen said Be wa» tfa«
next remainder man, and that the estate would
come to himself on his brother's death.
Mr. Recorder. Well, Mr. Goodere, you
have heard what Mr. Smith bath said, Iuiv9
you an^ questions to ask bim ?
Mr. Shephard. Mr. Recorder, what 1 have to
ask of you, witb submission, in behalf of Mr.
Goodere, is, that you will indulge counsel to
put his questions for him to the Court, and
that the Court will then be pleased to pat them
for bim to the witnesses. It is every day's
nractice at the courts of Westmiusteri Old
Bailey, and in the circuit.
Mr. Vernon. This, 1 apprehend, is a matter
purely in the discretion of the Court, aud what
can neither in this or any other donrt of cri-
minal justice be demanded as a right. The
judges, I apprehend, act as they see fit on
these occasions, and few of them (as fttr as I
have observed) walk by one and the same ralo
in this particuUir : some have gone so far, as
to give leave tor counsel to examine and cross-
examine witnesses ; others have bid the counsel
propose their questions to tho Court; and
others again have directed that the prisoner
should put his own questions : the method of
practice in this point, is very variable and un-
certain ; but this we certainly know, that by
the settled rule of law the prisoner is allowed
no other counsel but the Court in matters of
fact, and ought either to ask his own questions
of the witnesses, or else propose them himself
to the Court. 1 have one more question to
ask of Mr. Smith before we part with him.
Sir, I think you were present when Mr.
Goodere was brought to Bristol, after bis bro-
ther's being killed ; Pd be glad to know whe-
ther you then heard him say any thing, and
what, concerning this foul business ?
Smith. I was present when Mr. Goodere wai
brought to Bristol after this murder bappeneti,
when he was asked (before the justices) about
the seizing, detaining and murdering sir John
Dineley ; and he then directly answered, that
be did not know that his brother was ronr-
deredordead. He was then asked in rela-
tion to the manner of seizing bim, and carry-
ing bim away ; he said he knew nothing ofit
till he came to the boat, and when he came
there he saw his bi other in the boat; but he
did not know that bis brother bad beeu used at
that rate.
Mr. Shepherd. Mr. Smith, Sir, yon are
speaking about sir John; by what naaae did
you commonly call bim ?
Smith, Sir John Dineley Goodere.
Mr. Recorder. Mr. Goodere, have you any
questions to ask Mr. Smith ?
Samuel Goodere. Yes, Sir. Mr. Smith, I
ask you what sir John Dineley 's buKiness was
with you, and how tuueh money were yon to
advance ?
Smith. Five thousand pounds, Sir; and I told
him that 1 was satisfied that it was a good title.
Samuel Goodere. I ask you, if you kovw
bim to be a koigbt aod barouet f
I0S3] H GEOBGE II. Trial ofCapiotn Goodere and M. Mahony, [lOSi
Smith. I can*t tell ; I Defer saw the letters
patent.
Samuel Goodere, Can't you tell bow. you
■tyled him io the writings P
Mr. Vernon. I am very lotli to interrupt
BIr. Goodere, but must submit it, Sir, that this
question is extremely improper, because per-
sonal knowledge is by no means legal mi-
dence of his brother's naving been a baronet ;
tor baronetage must be derived from letters
patent: neither can I see, Sir, (with great
submission) how it would be at all material in
this oose, whether tlie dt?ceascd was a baronet,
or not. By the indictment the prisoners stand
charged with the murder of one sir John
]>ineley Goodere, and the witness Mr. Smith
£ roves that the party whom we shall shew to
a?e been murdered, commonly went by that
name.
Mr. Shcphnrd. With great submission, Mr.
Recorder, 1 think it a very material question
in point of law : upon the face of the indict-
Rient it appears, that he is described by the
name of sir John Dinelcy Goodere ; in a de-
claration for the king, the party ouglit to be
set forth with his adtlitions and titles, the per-
sons committing the fact, as well as the person
on whom it was committed : the deceased is
described by the name of sir John Dinelcy
Goodere, and if he was a baronet by patent,
it is not his title, and it amounts to the same
as if they had mistaken the Christian name ;
if the deceased was a baronet, then he is im-
properly described, and then the prisoners
can't be found guilty on this indictment. The
question before you, Sir, is, whether this
question was proper to be asked the witness?
j\Ir. Recorder. Can I presume him to have
been a baronet, or can 1 admit of parole cvi^
dence to prove him so ?
Mr. Vernon. Mr. Recorder, T hog leave to
be heard in answer to this observation of iUr.
Khe|)hHrd*s, which I apprehend to be one of
the most extraordinary 1 ever heard from a
gentleman of the long robe, and am bold to
say, the learned gentleman who made it (if in
caruist), is niurii mistaken in it, and in the
doctrine he hath advanced concerning it.
With great dt-rv-rence to your judgrocni, Sir,
1 speak it, Iii:j objection (if 1 appnlirnd it
rightly) is, liiat tliu perbxm mciitioncsl in ihe
indictment to have been miu'ihi'rd, is tl:ore
described by the name of y\v John liinciiy
Goodere only, and that by tl:c csiiU*ncc it np-
Siears the pf-rson nuirdcrrMl was sir Julm
Jiuelcy Goodere baronet ; nxA lie v/nuld from
thencelnfer, that there is a iniit-aUi- in the de-
bbdy, as a fee conditional and forfeMile fur
felooy.^But that where a baronet is mur-
dered, it is necessary to set forth his nsnie (or
more properly title of fHffnity) io the indiet-
ment, 1 mu^t take the liberty to deny : Iht
difference, which I apprehencl has been a^
ways taken and allowed, is between the io-
diclee, or jierson charged by the indicimrat
with committing the oifence, and Ihe persoa
on whom the offence is laid therein to bavs
been committed. 'I'is indisputably true, thst
the indictee's addition (whether of title or
otherwise) roust be set forth in the indictment;
but what is the reason ? Why, because it ■
expressly so required by the statute of the UK
of Henry the 5th, which directs, that indiol-
ments and writs where nrocess of ootlawrj ii
awardable, the estate, degree or uaysterj af
the deiendant shall be superadded to liis aaai^
to prevent troubling one person for another.
But, Sir, with great submission, that statmi
was never taken to extend to any other but tiw
defendant. All the kiw requires, as to lbs
person on whom the offence is laid to bats
been committed, is a convenient certaiotjia
the description of him ; and surely a deaorip-
tion by the right Christian and surname ii
such, and suflicient to ascertain the penoB
murdered, especially where it does not appec
there was any other of the same name, la
the indictment against Coke and Woodbnrss
on the Coventry act,* for disfiguring llr.
Coke's brotlicr-m-law Mr. Crispe, andwhiek
was settled with great advice, the person di^
figured is described as here, one Edmnl
Crispe only ; and all the modem preoedemi
of indictments at the Old Bailey are silent, as
to the addition of the peition on whom tbt
offence is said to be committed ; and it is en^
tainly best aiid sai'irst to omit it. l<ord Coke
in hie lirst Institute lays it down, thai a {KrrMB
may have divci s surnames, and that a purcbsiB
by either of them is sutficient, and yet boC
one of them is his true name; which ibe«0
the law is not so over-curious in the maaner
of describing persons : and, if I mistake doC,
it has been held that even the indictee himM^^
can take no advantage of a mistake of hie
surname, if his Cliristian name be right, and
he l>e other\«isc described with convrnieSi
certainty. Besides, ^ir, this is begging the
question ; for it does not appear in proof tbiS
the dvjccasc'd was a huronet, he miffbt fur
au;jlit appears judicially to the Court liiva
bf;e:i iYnpli/:ni b; tbe name of Sir Jolin. Bar
vor.iiajxo a^. .i p.ttiia-difj^nity we koow i*
t;- inaUer of record, which is a thing prorcjUa
scription of the person murdered, arid a va- only by itself; ilicrtfoie if they would hart
riance between the indictment and the e\i- ' ' ' ' ^- -• .. . .. ^ —
dence. Our baronets, it is well known, arc but
of modern institution, and tlirir croaiion by
patent from the king, as the fonntaiu of ho-
nour; and whoever reads lord Coke's 12th
report, will find it to have been resolved, at a
learned conference in the time oi' James the
first, that the king could erect such a dignity
by [latent descendable to the hcira male of Uie
taken any advr.r.latre nf it, they should baft
had t!ic letters paicut of creation, or aa er '
enipliHcalion t)f tl:ei:i, at least en po'tsnc (al
the law t(.nins ii) realty to prcKhice in coort:
and for an antiioiiiy in point. Sir, I begl<*af*
just to mention the case of sirltichard Grahinel*
* See their Case, vol. IG, p. 54.
t iScc his Case^ vol. 1% p. 6IA.
Jwr the Murder of Sir John Goodere. A. D. 1741. [I0S6
tiMjr are by law intiiled to' but I cannot admit
of ttviilence whioli cnn serve only to am use.
Mr. Goodere, bave you any more questions to
ask this w-itneas? Mahony, have you any ques-
tioDS to ask ? [Both silent.]
Morrit Hobbs svrom.
(1 Prestoa) ; he was indicted as a
and ol^cted that he was a lord,
ch triable by bis peers. But lord
« Holt, and others then (iresent,
bim they could take no judicial
lis hein^ a lord (though they tliem-
d him so out of courtesy when they
im) unless he produced the patent
, or a copy of its inrollment, be-
jer of record ; so his objection va-
] so I hupe will this gentleman's,
illed the deceased in the indictment
>ineley Goodere baronet, then, Sir,
probably hare been told, that we
n proof of the identity of the persoui
le baroncttage was in its creation
, and made a concomitant on the
surname of Goodere, and waited
at name; and that the deceased,
as a baronet, was not of the mater-
of Dineley, and so upon the matter
rson as sir John Dineley Goodere
sr in rerum natura.
'hard, H^Tr. Recorder, Mr. Vernon
B not appear that sir John Dineley
met, and that we oug^ht to protluce
Katent to shew him such ; i think
ard objection, considcrinff that by
ner cannot look into his indictment,
copy of it, in order 1o be advised
rlere it comes out only on hearinQf
tent read, and the person killed is
scribed by the name of sir John
xidere only, without adding the title
o tli.'U it was impossible for us to be
ith the letters pntcnt, or with any
f his being a baronet ; therefore
witness 3Ir. Smith, who was so
with the deceased ;;entlemau, had
of his writinp^, all his title deeds
him, so that he cannot but know
y of bis title and deinrree.
order. It is a rrrrat mistake to say,
ecessary to set forth in the indict-
ddition of the person on whom tlie
lupposed to be committed; the law
) such thincT, and the prisoners suffer
of inconvenience by leaving out the
because on this indictment if they
)pen to be acquitted, or stiould be
of homicide under the deg^e of
py may plead that acquittal or con-
bar of a second prosecution for the
with an averment that the party
in both indictments, though under
pscriptions, was one and the snme
is suifirient that the deceased is de-
his Christian name, and the surname
he was commonly called.* The
roposed to the witness is improper;
t at all material in the present case,
ir John* was a baronet, or no. 1
deny the prisoners any advantage
Leach's Hawkins's Pleas of the
>k 3, e. s:;, s. 7U.
CVII.
Mr. Vernon. Mr. Hobbs, I think you are the
landlord of the White- Uait alehouse.
Hobbs. Yes, Sir.
Mr. Vernon. Piay, wherealioutiathe house?
Hobbf. Over- against St. Augustine'schurch.
Mr. Vernon. Can you see Mr. Jarrit Smith's
bouse from the window of your's ?
Hobbs, Yes, Sir, very plain.
Mr. Vernon. I presume you are not unac-
quainted with the prisoners' faces ?
Hobbs. 1 have seen the prisoners several
times.
Mr. Vernon. I would not lead yon in your
evidence, but would be glad you'd give an ac-
count to Mr. Recorder, and the jury, whether
Mr. Goodere (the gentleman at the bar) applie<l
to you about coming to your house ; if so,
pray tell us wheo it was, and U|ion what occa*
sion ?
Hobbf. Tlie 12lh of January (which waa on
Monday) captain Goodere and Mahony came to
my house ; captain Goodere asked my wife,
Have yoa good ale here ? She said. Yes; he
also asked. What place have you over-head ?
I answered^ A closet, a place where gentlemen
asaally sit to look out. Wilt you please to let
me see it, says he? Yes, Sirj^ said i. 1 went
up to shew it, be and Mahony vi cnt up ; the
captain said it was a very fine i>ros|>ect of the
town : he asked for a pmt of ale, 1 draived it.
pewe are proper in asking this qnes- and he gave it to Mahony, he drank it : ond
_.T. M_ 4... .-.1. ..ri-^ jjjgjj jljg captain nsked my wife, whether he
might have a dish of coffee made to-morrow
morning?. Sir, said the, it is a thing 1 don't
make use of in my way ; but, if you please, 1
will get it for you. Then he told her, he would
be there fo*morrow uiorning by about nine
o'ck>ck. Moliony was by then.
Mr. Vernon. Did you hear this discourse
pass between your wife and Mr. Goodere?}
Hobbs, Yes, 1 did, and thfu the captain paid
for bis pint of ale, and went away ; and the
next morning (being Tuesday the lUth of Ja-
nuary) he came again to my house before my
wife was up, and 1 was making the fire (fbi- [
keep no servant). I did not know him airain, I
thought he was another man ; says be, l^uiid-
lord, can't you open them windows in the par-
lour? I to'kl him, I would, and so 1 did; ha
looked out, and 1 thought that he hail hern
looking for somebody coming from College
prayers. He asked where my wife was f
Says I, she is a -bed : benausc, i^aid he, 1 talked
with her about haviusr some coffee for breakfast.
I told him, she should come down presently,
hot I had much rather lie would go down to
the coffee-house, where he would have it in
order. No, says he, I will have it here. My m ife
came down, he askeil if ha might go up stairs
where he was bdbre ; be went up, and by -sad-
3U
1027 J 14 6E0UGE II. Trial of Captain Goadere and M. Mahony, [1028
by Naliony and three men more came in ; I did
not kiioiv Mahony'sname; when they came
in, the eaptain uai above stairs; he directed
BIS to moke his men eat and drink whatever
thry woultl, and he would pay for it ; I brouj^ht
them bread and cheese, they eat what they
pleased ; Ma bony went backwanls and for-
wards, up stairs and down several times ; he
went out, but where, or wbait for, I did not
know.
Mr. Vernon, Did Mahony, when be went up
stairs, g[o in to Mr. Goodere P
Hobbs. Yes, several times; Mahony put
the cuflee, and some bread and butter, and
made the toast, and did every things for the
captain, I thought he had been his footman.
IV hen the captaiu had breakfasted, and bad
made the men welcome, be shifted himself
(xouie porter brought fresh clothes to him).
By -and- by a man rid along^, who, I believe,
was sir John Goodere^s man, with pistols be-
fore him ; 1 heard somebody say that it was
his man : and soon after the captain had shifted
himself, Mahony went out about a quarter
of an hour, and came back sweatin*^, and went
up to the captaiu ; and 1 looking out of the
window saw the man on horseback, and leading
another horse (which I took to be bis master's) ;
and by-and-byVr John mounted, and rid down
between my hou^e and the church ; and I had
acme glimpse of him, and beard the captain
say, Lotfk well at him, but don't touch him.
Mr. Recorder, This you heard the gentleman
above stairs say to the four men below ?
Ilolbi. Yes, ISir, he spoke those words to the
four who came in.
Mr. Vernon. Did sir John and his man ap-
pear to have anv arms ?
Hobbs, Yes, §ir, they bad both pistols before
them.
Mr. Vernon, Those men that were along
with Mahony, do you know what ship they
belonged to?
Hobbs. There was a young man, I believe
something of an officer, came to my wife, and
aaked her, Is the captain of the roan of waf
here ? She answered that she did not know ;
but there was a gentleman above, and there
were six other men besides in the other room in
another company, which I did not know be-
longed to the captain, until he ordered six pints
of ale for them. The captain ordered enter-
tainment lor ten men.
i^Ir. Vernon. U'here were those six men ?
Hobbs, In the kitchen ; they did not belong
to the man of war, nor were not in company
with the other four.
Mr. Venivn. Now, will you proceed to ^ive
an account \\ hat followed upon Mr. Guodere's
sayin^r. Look well at him, but don't touch him.
Hobbs, As soon as sir John went down the
hill, this Mahony slept up to the captain and
came down sigain, and he and the other three in
his company went down the hill, and the can-
tain followed them ; the €k>|hca which tiie
laptain pulled off were leH in the room ; when
tM captaiB was i^ing out M tk« door with hit
ffwoni and cloak, I thooght I was ftretty nft
of my reckoning, because of hia clolhet'iiein|[
left. The captain said at the door, Lanilladj,
I will come Imck and pay you presently.
Mr. Vernon. How tons: wav it before Mr.
Goodere returned to your noute ?
Hobbs. ile came again in about a quarter of id
I hour: VVhen became again, he went up stain,
changed a guinea, he asked what was to pay P
I told him t'ttiir shillings and one penny half-
penny, and thou wint away. About an hour and
a half after Mahfmy and the other cameagtio,
sweating, and saiirihey had been amileortwt
out in the country. Mahony asked creditfbra
tankard of ale, and said his master would oona
up on Saturday following, and then bewouM
pay for it: W^l!, said 1, if lie is to comenpoo
Siturday, 1 will not stand for atankard of lie;
but if he don't come, how shall I have bit
reckon innr p Hays Muhony, I live at the Scotch
arms in Marsh-street. Well, said I, I will cut
deny drawing you a tvnkard of ale, if yoa
never pay me. Slid he, You had best get tbi
room ready n gainst Saturday, and make a 6n^
and just dust ir.
Mr. Vernon, Pray, when Mr. Goodere wei.t
away from your house, was he in the nmi
dress as w hen he came first there that dav ?
Hobbs, No, Sir. When he came there he Ini
a light-coloured coat, and he looked like i
country farmer at bis first coming in ; bat
when he was out, he bad a scarlet cloak oo,
worea oword, and had a cane in hia hand; a
porter brought him the things.
Mr. Vernon. Do you know any tbiag of
what happened on the Sunday following ?
Hobbs, Yes, Sir ; the Sunday morning Ml-
bony came to my house, having tronsers and a
short jacket and leather cap on, asked fbra
quart of ale, this was Sunday: My wlfenid.
Don't draw any more upon tick. Mabooy
gave a six -pence and paid for it, and said, 8ei
that the room be clear, the captain wilt be op
in the afternoon, and then he will be here:
And as he was going out of the house, he slid
to me, If you fortune to sec that gentlemio ga
up with the black cap before that time, deyou
send a porler to me to the Scotch arms. 1 told
him 1 had no porter, and could not seod.
About 3 o'clock in the at'ternoon, when he cane
again with a person who had a seal led face,aDd
one or two more, a man who lodged in tbs
liouse came and told me, that they wanted to
go up stairs ; bnt I would not let them, becaoM
it was in service-time : They all went into tbt
parlour, and had a quart of ale, and when thit
was drank, Mabony called for another; and
then eight or nine men more came and called
for ale, and went into the parlour, but still kept
lookin<rout ; and one of them being a littlefel-
low, I don't know his name, keptalammingtba
door together, ready to break the house di»wt.
S.iy8 I, Don*t brealc my house down aboot my
ears, don't think you are in Marsh-street ; tbn
the little fellow came up aa if he was soiogio
strike me, ai I was conung up out ofthe cel-
lar with adobbia of ale in my bukI| for ftgn-
far the Murder qfSir John Coudere.
A. D. 1741.
to the coll^: I sBwlhiB^o-
■ug to the prisniier Simufl Good*
■l«c«ued walk down titt liill, I
I, and Ro dill MftboDV ; anil
men rualied out, aad tnllun'ed
ny pniil the rcckoninK. *nd went
Id ta lee alter rn; innkanl, <<>r I
id (if'Ifwiiig ibnt llinn Ihe reckon-
l>i ia all 1 do know from tlie be-
end.
. Hotf long did be continue at
_ Ihf Sunday ?
belieie. Sir, an boar and an lislf ;
lume nr other o( ilietn still look-
■llinif at the door.
!r. YouMy tlialSUbno; desiri^d
u law the genllemaD in the black
»eQd a (lorKr ; who did ;oii ap-
gfolleman to be f
gcDtleinaii that rode down the
Jurji. To what place were jou to
■Br?
tlie^^cnlcb arnisinMBrsh-Etreel,
iy lotlijed, if tbe gentleman in the
Lgo nit to Ur. Smith'*.
». I tbink, yov la J, you satr Mr.
lie Sunday i^o down the hill, alter
HI in the black c>|if
dill, Sir ; but nobody at all tvas
, DidyouEee me at all thatdny ?
Tee, Sii', 1 saw you go into Mr.
i's ; and when yuu carae down
VIUb (fentleman in (he black cap,
It to Mahouy and bis company.
Is look charii.
, Did you see any body with me
ma not at your bouse that day.
lid not say you were ; but as y
l-Hr. Jarrit l^mith's, 1 heard one
I HV, 'I'liere giie% oui
I locked onl.
>l be^ leaie, my lord,
kUlbc captain bid Alahony to look
E gentleman with the black ca|i.
r«r. Was the gentleman in I
wboae going by they all Timhed
I gentleman wham you bail seen
ilr. Jarrit Smith's?
■iBir; but Haliony ^re bajf-s-
lor nbicb reesun
ionol Willian.
m. Mr. Williams, I (bink vou be-
I Ruby at ihe time when this nie-
b happened ?
,Yes, Sir.
^. Wiiatatalionwereyoum?
<1 WH ordered to walk the ijiiarter-
of sir John Dineley (joodere P Tell all jou
know about il.
Williami. I came up on Sunday the I3th
day of January last for my comninnder, went
ID Wn lodgTD^, he was nul at home; t waa
lold there, that he dined that day at Dr. Mid-
dtetou'a.. and he was just gone there, I wrat
to I>r. Middleton'a after him, and he wasjnit
gone from thence ; I then relurneil to bis
lodgings, and found him there ; I told him
the barge was waitiuff far his honour. He
asked me if I knew the ri»er, and if I knew
the brick-yard at the time-kilosf I told him
that I knew the liroe-kitns, and at last T re-
collected that I did remember the brifk-yard
he meant. That is well enough, says he.
While I was there, Malinny came np to him,
niid the captain desired of me to go clown Blairs.
for he wanleil lo siieak to Mahony iu private.
1 went down stairs, hy-aod-by Mahony came
down and went away ; then I wtnl up lo cap-
tain Oomtere again, when be directeilme toeet
all the bands together, and go down into ibe
hanie, and, savs he, let it be landed atthe^irick
yard. He alked me, if 1 knew Ihe White
Ilarl in the College Green ? I told him, I did,
and he directed me to take eight men up with
me to the While Hart, and let two remain in
Ihe boat, for I have a gentleman coming on
hoard with me. I did aa 1 was ordered; and
when I came to the White HnrI, I snw Ala-
bony knd some of the priraleer's men wilti
him ibere in a room : 1 diif not like Iheir com-
a' ; I went into Ihe kitrben ; 1 asked tha
lord lo make me a plot of toddy ; he asked
me, whether I would hate it hot or cold ; I
toM him a little warm; be was going abont it,
but before it was made, Mahony and the pri>
vateer'* men rushed out of thehonse: I seeing
that, followed iKem ; they had the grntlemen
in posaession before I came to them, and were
dragging him along. I asked them whnt they
were ol f One of the priviiteer't men Inid me,
if I dill not hold my tongue, he wnuld throw
me over the key into tlie rirer, and imme-
diately captain Goudere came there himself ;
The privateer's men asked what they should
dn with him, and he directed them to take him
on board tbe barge, I fulluHed them down lbs
liulU, tbegenlleman cried ont Murder, murder !
Mr. Stephen Perry the anchor-srailh came ool
of bis houw, anclosked me what was the matter f
I told him I did not know : Mahony said ha'
wa* a murderer, he had killeil a innii on hoard
the man of war, and that he
they hail carried him betbrc a
' be KDs ordered back to ihe ii
tried by a courl martial,
Mr. Recarder. Was the canUin within he
ingat ihe timoMahony said lliatt'
WiSiiamt. He waijum behiud.
Mr. Ricordf. Wa^hewilhin bearingl'
Wiliiami. tie waa; and when they barfj
brought him into the bargs, eaptain Gwulrr*'^
dtisireil luIiaTethe cloak nut over sir John 1^
keep tiim from the cold, ont sir John said h* J
did not WBDt a cloak, neilber would he ban it
1031]
li GEOllGB 11. Trial of Captain Govdcrc and M. MaJwny^ [
The privateer*s men wanted me to put them on
the other side the water, but I said I would not
without the captaio'is orders. They asked the
captaiu, and he directed me to do it, and i put
them ashore at the ^lass-house, aud just as we
came over against the Hot-wells, there was a
gentleman stand ing whom sir John knew, to
whom Sir John cried out, Sir, do you know
Mr. Jarrit Siuith ? But before he could speak
any mori% the cioak was thrown over him to
prevent his crying out, and the captain told ine
to steer the har{j;e on the other side, until we
got clear ofr* the nnisc oi* the people ; and when
we were got clear, he directed me to steer the
boat in the middle, as I ought to do. 1 obeyed
bis order.4.
Mr. Recorder, \Vho threw the cloak over
him 1*
Wiilianu. The captiln. And the caiitain
being as near to sir John as I am to your lord-
ship, sir John askeil the captain what he was
going to ilo with him ? Says the captain, I am
goin*|^ to carry you on board, to save you from
ruin, aud from lying rotting in a gaol.
Mr, Vernon. And \yhat reply did su: John
make to that ?
Williana, He said, 1 know better things, I
believe you are going to murder me ; you may
as well throw tne overboard, and murder me
here right, as carry me on hoard ship and
murder me. No, says the captain, I am not
^ing to do any such thing, but 1 would have
you make your ueafle with God. As I steered
the boat, I heard all that passed. We brouglu
sir John on board between 7 and 8 o*clock, be
could hardly go up into the ship, he being so
benumbed with cold ; he di4l go up oi* his own
accord, with the men's assistance.
Mr. Veniohn How was he treated on board
the man of war?
Williams, Sir, I don't know how they treated
him aAer he went on board the shiji. I was
pxcusc<l from watching that night, so i went
to my hammock ; hut after J was got out of
my iirst slccj», I heard some people taJkiog
and walking about backwards and forwards : i
was surprised ; at last I iK'Cped out of my
liamniock, and a^^ked the ceuiinel what was
o'clock ? He said. Between two and three.
Aud then I saw captain Goodere going down
the ladder from the deck towards the purser's
cabbin, but for what intention I know not. I
believe he came ftxHu his own cabbiii.
Air. Recorder, Whereabout is the purser *s
cabl)in ?
Williams. The purser's cabbin is in a place
called the Cock- pit. the lower steps of the
ladder is just by the door of the punter's cabbin.
Mr. litcordcr. And it was that ladder you
saw the captain go down, was it ?
Wil/iaitii. Yes, Sir, it was.
Mr. yeruon. Mr. Williams, you have not
told us all the particulars of sir Jojiu*s treat-
ment between the seizing and carrying him to
the barge,
Wiilianu. One of the men had hold of one
ann, and another I he other, and a tiiurd person
was behind shovmg him along.
BIr. Vernon. Where was captain Gc
then?
Williatns, He was just behind him.
Mr. Vernon. How near was he to him
WUliam$. Sometimes he was as near U
as 1 am to you.
Mr. Recorder. How many were the
the comiiany, do you think, in the rope-
when they were carrying sir John along ?
Williams. There were liveof theuriva
men, and Mahony made six, and tliere
nine belonging to the barge ; about sixic
all.
Mr. Recorder. At what distance were
Williams. At a pretty great distanc
walked just before them: 1 saw them
him along in the inanuer I have said ; 1 I
sir John cry out murder several times i
went, as they took him along the rope-wi
Mr. Recorder. Mr. Goodere, Will yoi
Wiiliuiiis any questions ?
S. Goodere* What side of the gun -rooi
you lie in ?
Wdliamt, The star- board side of the
room.
S. Goodere, Why then it was impossibi
YOU, as you lay iu your hammock, to lei
body go down to the cock- pit.
Williaiiis. Not ct all. Sir ; the gunner's
bin comes out further than e\ur was knov
that sort.
5. Goodere. Are there any other cabbin
sides the purser's in the cock- pit .^ Did
ever examine them how strong they arC;
what partitions are there between them ?
Williams. I don't know any other cabbii
the purser's in the cock- pit; the cooper 11
the slop- room.
S. Goodere. Were you never in the do(
cabbin?
Williams. No, never in my life.
iS\ Goodere. l)o you know wh«.Tcaboii<
Ruby lay, when you brought that genUi
on board ; where did you apprehend the
was?
Williams. 1 did not know the situatii
the ship, I had no business to know tba
was hut a foremast- man.
Samuel Tritctt sworn.
Mr. Vernon. Will 3'ou give an accou
Mr. Recorder and the jury of what you 1
relating to this business.
Trivett. On Sunday the 18tli of Jan
last, I was at a public house in the rope-vi
1 hoard a noise of )>eople cried, llarai
sland off, or else we will knock your L
out ; I stepped up, and asked what right
had to carry a man along attir that manni
followed them ; their answer was, it was a
shipman who had committe<l murder, aud
were taking him down to the ship to dc
justice : other people likewise followed, to
ing what was the matter: the gontleoMi
behind, and ordered them to make more I:
Mr. Vernon. Look upon the |u-iaQiwr i
bar, Mr. Goodere ; is that the geutlenai
ordered them to make more haste?
1033J
for the Murder of Sir John Goodere.
A. D. 1T41.
[10S4
Triveft, 1 believe that is the man, my
ord. Ou the ^eutlcmaif s ordering thein to
u&ke more baste, five or six oi' them caught
lim up iu their arms, and carried him along ;
iiid nv they were got down aliout the comer of
klr. lirowii's wall, he iusL<:led upon their malfiiog
Dure dispatch, and then they hurriod bim an
ar as captain Osliom's dock. Uy 4liat time
lit clothes were rufflett and shoved up to bis
tfm-pits ; tlicy put tiim down, and settled his
dotlies, and then 1 saw bis face, and knew him
a Le sir John Dineley : he cried out murder
Kveral times, and said, they were taking him
BB board to kill him, he beliered. As they
vere going with him along, he cried out to
Hrs. Darby, Fur God's sake assist me, they
are going to murder me. I told Mrs. Darby,
k was sir John Dinelev : she said she knew
LiiD ; the cluak was then over his iiuse. As
Uiey gut him further, he called out to a little
girl, to get somebody to assist him, for they
vere going to murder him. They ftushed him
akmg to Airs. New's house, and niade a little
ttip there, and then they brought him to the
Viler- ude, where wos a boot ; they put out a
flank with ledi^es nailed across : he was ordered
ligoon beard the boat ; they got bim on board,
and put him to sit down in the stero-sheet :
tbes he cried out, For God's sake, gentlemen, if
tayot'you know Mr. Jarrit 8mith in the Gol-
Isfs-Kreen, tell him my name is sir John
Buieley. One of the men put his cloak and
eofered bim, and liefore he could say any more,
Iku gentleman (pointing to the prisoner
Goodere) took his hand and put it on his mouth,
■mI would not let him sfieak any further, and
•nicred the bout to tie pushed off, which was
done ; and the tide making up strong, the boat
got almost to the other side. I heard that gen*
tkoiao (pointing as before) say, Have you not
ffnn the rogues of lawyers money enough al-
VBidy ? Do you want to give them more ? I
*iU lake care that they shall never have any
Mveof vou ; now 1*11 take care of you.
Nr. Aecorder, Prisoners, will eiuier of yon
>ik this witnewi any questions ?
& Goodcrc, No ; 1 never saw the man before
M my life.
Thomas Charmhury sworn.
Charmlmry, On Hunday the 18th of Ja-
B*vy lut, between the hours of four and five
i> the afternoon, 1 was on board tlie ship called
^ litvant, lying in Mr. Thompson's fk)ck ; 1
ImN a noise coming over the bridge of the
<^ and I saw a man in a KcaHet cloak, ond a
PUtd of |>eople, some before and some behind,
^•rdiog of him, and he made a noise. 1 went
towards them, to see what was the matter, and
^Hr. Htephen Perry's counting-house (they
'cM) I asked, what was the niatter ? They
»id, oe bad killed a man on board a man of
*ir ; that he bad run away ; and they had
bid him before a magistrate, and he was or-
dtnd on iboard the king's ship to be carried
Msd to London to take his trial. Mr. Perry
[in heuring the noise) came out and saw him ;
says Mr. Pert^, Ciestleroeu,d# yon know what
you are About ? I would not be in your ooatf
ibr a thousand {leunds, tor it is 'squire -Goodere.
They threatened to knock down any that
should come near ; a fellow, 1 take him to be
Maliouy, came ap 4o mo, and threatened t«
knock me down several limes. They 4eok and
carried him as far as captain James Day's loAi
and wareliouse, where he keeps bis hemp ;
and there they rested him again, anA thveatened
to knock down any that should come near
them. Then said Mahony, Damn ye, here
comes the captain. Immediately 1 tumtd
about, and saw a gentleman with -his oone
poised in one hand, and his sword in the other ; '
he had a dark shag coat and yellow buttOD8«
wlmm 1 take to be tliat gentleman tlie prisoner
at the bar. Tliey took up the man in thi
scarlet cloak again, and carried him so far as
coming out from the lower College-green into
the rope- walk : the prisoner -Geciaere came up
to tliem and ordereil them to mend their pace;
they took him up again, and carried him as tar
as Brown's garden, at the k)wer end of therono-
walk, as fast as they could well carry him^
where they settled his ckMhes, and in the menu
while the prisoner Goodere came up to them
again, and ordered them to mend tneir pace.
With much difficulty th»y got him between thei
gate and stile, and carried him as fiir as the
warehouse at the corner of the glass-house,
there they rested and settled his clothes sgain r
then they took him up, and carried him down
to the Lime-kilns, as tar as the lower part of the
wall below madam New's ; ond tlH>n^ brought
him down to a place opposite to the* King's*
head, and thc^n they put him on board a boat (I
take it the man of war's barge) having tea
oars, and they handed him in. After, the pri-
soner Goodere went into tlie boat af\er hinii
and set sir John on the starboard -side, and the
prisoner Goodere on the larboard-side ; then sir
John cried out. Murder! you gentlemen that
are on shore, pray tell Mr. Jarrit Binitli, that
my name is Dineley, and before he could nj
Goodere, the gentlemen took up the flap of the
cloak, threw it ove»tlie face of sir Jolm, and
stopped his mouth ; and says he, I will takecsre
of you, that you shall myt spend your estate ;
and ordered the bai^e to be put off: and then
he took the gentleman's cloak firom bis shouK-
defs, and put it on his own.
Mr. Recorder. Who %vas it that stopped his
mouth with his cloak?
Charmhury, That gentleman the nrisoner at
the bar. The boat was so full, hao so many
|)eople in it, that they were obliged to row but
with eight oars: and when they [iroceedcd.
down the river, it being about three quarter*
flood, and the gentleman continually crying
out, they went out of siglit, and 1 sow no more
of them.
Mrs. Darby sworn.
Mr. Vernon. Mrs. Darby, I think yon lire
at the Lime-kijin.
Mrs. Darby, Yes, Sir, I do.
1055] 14 GEORGE IL Trial of Cajdain Goodere and M. Mahony, [1036
Mr. Vernon, Whit do yon know of thb tra-
gical affair ?
Mrs. Darby, I saw sir John Dineley forced
aloD^ between two men, he crying out Murder,
murder, for the Lord's sake save me, save me,
lor they are going to kill me !
Mr. Vernon. Pray what were they doing to
liiro at that time ?
Mrs. jDar6y. Forcing him along, Sir; one
had him under one arm, and another under the
ether.
Mr. Vernon. Did you then know him to be
sir John Dineley Goodere ?
Mrs. Darby, Yes, Sir ; last summer we
mended his chair for him, I knew him very
well.
Mr. Vernon. You say you knew sir John ;
prav did you know this gentleman T (i>ointing
to Mr. Goodere.)
Mrs. Darby, There was a oreat many other
persons there ; they told me that the captain of
the man of war was behind ihem, which 1 be-
lieve to be the gentleman at the bar : he was
dressed in a dark drab-coloured coat, and his
waistcoat trimmed with gold.
Mr. Vernon, What further did you see
pass ?
Mrs. Darby, I saw them hurrying him on
board the boat, but I did not go any further
than over against my own door; but when
they were turning the boat, I beard him cry
out, but what he sud I know not.
William Dupree sworn.
Mr. Vernon, Giveanaccount of what you
know of this matter.
Dupree, On Sunday the 18th of January
last I was at the sign of the Kioto's Head, upon
tlie rii^^ht-lianil side of the Red Lion as you go
down to the Hot Well, with a friend of mine, n
man that works with me, drinking a pint of
ale ; iliere was a voung woman, she was read-
ing at the winditw. She said, she heard a
great outcry, we heard the same, we went out,
■aw a company of men forcing a gentleman
Along; 1 saw captain Goodere tiie prisoner at
the bar coming U'hind them : when ihey came
down to ScriguTHi's Slip, they gave out a re-
port, that the gentleman had murdered a man
on lK)ard a man uf war, and they were taking
him on board for justice. They put him on
board the yawl, and captain Goodere stood by
whilst they did it. The gentleman cried out,
For God's sake go and ucquaint Mr. Jarrit
Smith, for 1 am undone, they will murder me.
] went into the house again ; the people ad •
viseil me to go to Mr. Jarrit Smith, and inform
him of it: as I came home I called at Mr.
Smith's, and told him what I had seen and
beard, and he told me he would sec about it.
Mr. Vertion. l*d be glad to know whether
upon the gentleman's crying out yoa saw any
thing, and what, done to him P
Dupree. I saw the captaJDy the priioiier at
the bar j|)ut bis band and atep bia
jiir. r smoa. Are yoa paar
Jhfprtt. Ya^ I wm
Theodore Courts Master of the Sliip, sworn.
Mr. Vernon. Will you tell Mr. Recorder
and the jury what you know oonceraing the
death of sir John Dineley Goodere ?
T, Court. On the 18th of January last, be.
ing Sunday, the barge went up to tielch captaia
Goodere from Bristol, and about seven of tbe
clock in the evening he came on board, aad
when he came into the gangway, aays he, How
do you all do, gentlemen ? Excuse me, gca-
tlemen, from gomg the riffht way to-night, fbr
I have brought an old mad felkiw on board, aad
1 must take care of him. 1 saw a gentlemio
with a black cap coming up the ship's tide,
and his groans snocked me, so that 1 could dok
help him ; he looked much surprized, as a per*
son used ill : as soon as he was on board, he
was taken into custody, and carried by the cap-
tain's orders down to the cock- pit, and pot iato
the purser's cabbin, and a centinel ordered opoa
him ; and I saw him no more at that time.
Next morning I was told that the captain's brs-
ther was muraered, and that the captain- bad
given Charles White and Mahony leave (a g»
on shore.
Mr. Recorder. By whose direction was hs
put into the purser's cabbin ?
T. Court, The captain himself went down,
and see them put him'in.
Mr. Vernon, Whereabout in tbe ship is tbt
purser's cabbin ?
T, Court. In the cock- pit.
Rlr. Vernon. Was it a place where gentle-
men who came on board commonly lay ?
3^. Court. No, nobody had laid in it for i
considerable time. The next mominir the
cooper met me, and said, Here is fine duingt
to-ni£|;ht, Mr. Court ! Why, what is the matter,
said I ? Why, said he, about three o^clock thif
morning they went down and murdered fir
John. The ship was in an uproar ; the cooper
said, if Mr. Perry (the lieutenant) did not se-
cure the captain, he would write to the board:
we had several consultations in the ship about
it. 'i'lie captain sent for me to breakfast nilh
him : I accepted uf his invitation : I can't say
but he behaved with a very good name to all
the people on board. About ten o'clock Mr.
Perry, myself, and the other oificers, with tie
cooper, consulted about securing the captaia.
Mr. Perry cautioned us not to be too hot; for,
said he, if we secure the captain before we koow
sir John is dead, I shall be broke, and you too.
Wc sent for the carpenter, and desired him to
go down and open the cabbin door, the centinel
who stood there having said it was lockM ; Uie
carpenter went down, opcnetl the cabbin-door,
and came up, and said sir John was murdered;
and that he lay on hisj left-side, with his leg ap
crooked. I told them, gentlemen, there is no-
thing to be done before uie coroner comes ; and
therefore we must not touch him : wbereopoa
the door waa ordered to be fastened up: wa.
J hAw to take the caplaiiii and «.|^
m ftr tbat purpoae. Aad j
I jraa taken, hadedani }
the MuTdtrnfSif John Goadfrt,
A.D. 17*1.
CI033 ^
or it. llial he knew not Ihi
P'trat murtlered. ^V lieii tlie coroner
IT the ileceasci), and niy hcari aclicil
ftfeordtr. Who was il put llie cen^ael
■ Jnbn ?
«rl. The CBplaiD onlered ll to be ioo*.
Vernon. In it usual lo place n irentiiiel
uner'a esbbin-iioorf
aurt. No, U is nul ; unless thri
ly ihere under coolinmieiil.
Vtraon, Is tlierc toy other cabliia near
lUTt. Ym, tliere it (be B!o|>-rooin Jusrt
pre llie cooper and his wife lay that
there ii just a little parlilioo ot about
h deal, fiarlinc' the iloproom Iroiu the
here sir Johu lay cnufiiied.
'tnan. I'ti'y, will you tell 418 nbelher
it wliat discourse passed Ix^twecn Mr.
I and you, about aaillug; and vilien it
Hrrf, Sir, in the morning he asked me,
iMiodferTc to sailf He asid. be had
prenins letter Irom llie lords of tlie
ty In sdil as soou as possible. I told
It ibewind was west-soutb-wcsl, and
coutd lint ^i> out to sea ; for no pilat
ikerhargeot the ship. 1 beliered. And
a a harbour where a pilot is allowed, I
la tbr ihia {ilace; otherwise I niutt have
I bis orders.
'ernoR. Did he acquaint you how far,
Mt pan, he would have you sail ?
<urt. Ves, be said, if be g'ot no fur.
in the Roltnes, he did not care; and
«, if it was safe riding there. 1 told
fM not ; for it was I'aul ground for sucli
Itcorder. Mr. Ooodcre, will you ask
ten any questions 7
vdtTc. VVliai cabbias are there in the
t
lUrt. I know nncabbin8 there but ibe
cahbin and the slop. room, Ate.
emon. Cnll Sir. U'llliams.
William W.iliBmt sworn.
Vtmon, Mr. William*, bare yon a
It jonr poE^eision belonging to Mr.
iir D watch in my poiscsiIoD.
l*lifa»e to pnidDce il, mid lei
, came byilf
I h«d it from a vault in Ilack-
Hmr aiine il lo be starched
'<'- TMijbi ihittbinff was under
It (be Cniincil-boute, and
; . ihe Hrnckware-boDtiia the
■ "■.i.-hi,„d'
ibmwK the wRleh into the *ault. Upon whicfa,
byihe order nf Mr. Alderman Day, I, with b
mnntn, opened the vault; where, on search, I
found the walch, and look it out Here ia lb*
watch ; but whoiie ills. I know not.
Mr. I'trnon. Now I desire lliat watch insjr
he sliewn to Mr. Court.
[Tlie watch is delirered to Mr. Court,]
Mr. Vernon. Now you have looked upon
the n'atch, tell us if you con, whose il wos?
T. Cinirf . 1 can't swear positirety to it ;
but I helieva it was the caplarn'i waich ; he
had Bucli a one.
Mr. Vtrnon. Did Mr. Goodere
Bpild H'utch alniit biiu ?
T. Court. The captain did not usually wear
a ^tM watch : but I hare seen such a watch as
Ihia is, hanging up in the captain's cabbin. I
btl'OTQ it to be the «ame.
31r. Rrrorder. BIr. Court, you were asbeil
by Mr. Goodere, how many cabbins there ar«
in the cock pilf
T. Cnurt. There is ibe Steward's room, the
purser's cabbin, and the slop-room.
S. Goodere. Where is the steward's ri
T. Court. Tbat is the place where the
linel stands ; and there Is a place on the other
side where the surgenu lies.
S. Goodere. What persons were iu th>t<
place I hat night, do you know f
T. Court, The surgeon, I suppose.
S. Goodere. tVbat other persons were
any other of the cabbins thai night ?
T. Court. The cuoperand his wife.
.S. Goodere. Has the cooper a wife?
T. Court. 1 believe so.
S. Goodere. How long before the I3lh of
January did you new-moor the ship?
T. Court. Thursday Ibo ISthol January.
S. Goodere. How were the bearings then ?
T.Court. (Loukiog'on his journal.) Pusaet'
poiot west by south, Denny. island north-west
and by west, distant by compntatiou about four
mites; and llie point Iu the weslwaidof tb*
Hale's mouth south south-east.
Mr. Recorder. Were those the bearing oa
the letbtoo?
T. Court. I know no difTerence ; it is said
here, ditto 18th: if there bad been any tu'
lion, I should have taken uottceoi'it.
Mr. Vernon. In what part of ihe nver
the ship lie when sir John was murdered F
T. Court. She lay in King Road.
S. Ooodcre. Do you know the Denny F
'!'. Court. Yes, Ido.
-V. Qoodere. Suppose there was a strail line
drawn lru|D the south corner of that inland to
Ihe north part olthe water of Avon, would tbaj,
ship Ruby hate been on the eait oi
oflhat line?
T. Coui I. As to that I am not a
a I saw a strail linn drawn.
Mr. Hrcurdtr. Mr. Court, how l(w»B «1W *•
ip continue in thia mooriQa F _
T.C^mil. I i«w-B»««irii'haA;\^ V"***""
do; i'oUowinic
\
tin*
dM
10S9J 14> GEORGE II. Trialof Captain Goodtre and M.Mahony, [lOlO
5. Gooderw, Did the wind then blow easterly
or westerly ?
T. Court, The wind blew bard westerly the
&nday.
S, Goodere, As to the distance from the
Denny, I belie? e, you are ri^ht enongh ; but 1
htLfe a gentleman here who hath taken a sur-
vey of the river: and the situation of the ship,
as it lay Sunday the 18th of January, was in
the river bevern, very far eastward of the water
of Avon.
Mr. Vernon, Mr. Recorder, by Mr. Goodere's
present enquiries, he seems to be putliog bis
and bis fellow- prisoner's defence on the points
of the compass; I hope he has some better
point to go on : for if not, these I doubt will
stand him in very little stead. It appears in
proof, that the ship was stationed in Kin^-road,
when this murder was committed : now K.ing-
road, we all know, has been all along reputed
and allowed to be within the local limits of the
city and county of Bristol ; and the city pro-
cess runs thither, which shews it to be Within
the fcanchisa of the city; and the sheriffs of
Bristol do there constantly execute writs and
other process from above, which shews it to be
Within their bailiwick asa county, wliose bounds
and circuit arc best ascertained and pointed out
by reputation and consentaneous usage, which
stand as perpetual monuments of their limits,
after other marks are effaced or obscured by
time.
BIr. Shephard. I don*t at all question but this
city has great powers, and its limits are un-
doubtedly set forth by charter.
Mr. Vernon. I should he very sorry to find
the jurisdiction oi'a city (whose rights are dear
to me as my own) shaken by a side-wind,
and hope an attempt of this nature will not be
suffered.
Duncan Buchanan sworn.
Mr. Vtrnon, I think you were one of the
company that was at the White Hurt upon
Tuesday the 12th of January last ?
Buchanan. Yes, Sir.
Mr. Vernon. Will j'ou give nocounl by
whose directions you cainc up there?
Buchanan, On Tuesday the loth day of
January last the boat and barge were ordered
up to Bristol ; but u|)on what Hcc<iunt, I knew
not. I %vas onlcrcd to go to the White 11 ail to
attend the captain, and there was ^Muhony and
the privateer's men drinking hot iiip. 1 knew
nothing of what they were upon. I saw a
gentleman come out of Mr. Smith's, I suppose
it was sir John Dineley Gootlcre ; he mounted
his horse, and had pistols before him, and his
servant followed him with pistols also. Then
some of the men ran out ; and captain Goodcre
went out after them, and ordered them to follow
the gentiemao. 1 staid there till the captain
came back again ; aiui I know notbiiin^ mora
of what was said or dona then.
Mr. Vernon, Will you am inn
bayyintdt».tii»aiii3Mr.WBp»8"^»
Bu^hanmt, OnSunbjtl
noary about seven o'clock in the evening tbc
barge came along- side the ship with the geo*
tleman in it, 1 stood in the gang- way to receive
him ; when he came up, 1 heard him to make
a moan, and the captain said, 1 have brought t
madman on board, bring bim along, I will briog
him to his senses by-and-hy. 1 saw tbeu
take him along the gang- way. You roust sot
mind what he says, said the captain ; and be
was ordered down to the purser's cabbin; I
was ordered centinel there. About twdir
o'clock the captain sent for me to come up to
him, and 1 laid down my sword and went op.
and Mahony was there with bim; andtben;
was a bottle of rum and a glass before tlieoi:
the captain asked me to drink a dram, I thank-
ed him and drank. He askeil me ho%v his bro-
ther was ? I told him he groaned a little ; savs
the captain, I know the reason of that, be it
wet, and 1 am coming down hy-and-by to sliitt
him with dry stoc^kings : so I left the captain
and Mahony together. Some time after the
captain came down to me, as I was at my post
at the purser's cabbin ; he asked if bii
brother made a noise ? 1 told him no : upoo
which the captain listened a little time at
the door, and tnen said, Give me the sword,
and do you walk upon deck ; for I want to
speak to my brother in private. Soon after tliii.
Mahony went down, and very soon after Ma*
bony was down, I heard a great struggling io
the cabbin, and the gentleman cry out Munltr!
I then thought the~ gentleman had been ia use
of his mad fits ; but now 1 supfiose, they wcie
then strangling him. As 1 was walking to-aad-
fro in the gun-room, I looked down, and sav
the captain take the candle out of the lauthorp.
which was hanging up there, and be gave tbe
candle into the cahbin.
Mr, Rccordtr. Wlierc was 3fr. Goodere
when you heard the cry of murder ?
Buchanan. In the cock-pit by the purser'*
cabl)in-door, with the sword in his hand.
Mr. Rccordtr. W hat time of the night was
this?
Buchanan, lii'lwecn two and three o'clock :
i 1 lighte<l a cantllc at the lanthorn in the gun*
I room, and was going down to the captain with
' it, as siip]K)siiig him t(» he without light ; an •
I as I was g(»iiig down with it, the captain bela
up his sword, waved it, and said, Go back, aoJ
stay where you are.
Mr. Recorder. You said, that sir John Dioo
Icy cried out Murder I Was that before )<»«»
offered the candle to the captain ?
Buchanan, Yes, Sir ; it was before.
Mr. Recorder. How long?
Buchanaji. About a quarter of an hoar.
Mr. Recorder. How long did tbe cry c<f
murder continue ?
Buchanan. Aboat three or four mtnulei:
sooo after the captain bad ordered roe to keep
becki be celled for a ceodle, and I carried ses
Jawh. eni taegere me the sword, esid bid bn ]
«; end nid he, if my toe-
iiii»jMiie« lei bioi eleee aed
lileelwdtheyofur'K
Jitt tke Murder of Sir John
)b tlie krj »wty willt biro : ami ii>
, the doclor'a male, the cooper nod
to^iber aliiiut it ; «Dil 1 wu nil
i«, il' tir John waa tieaS, or not
'e f>ee|ied intuihe ratlin, weMW
• *er^ Olid Borl ol' n iiniii
hia taer, nnil ooe of hit h^ lay
Dii which we cuncluilril he
u off your
rder. How long were ji
■at to latl ?
I, I oan'l lell exactly.
nltr. KecullcL-i aa well us you can.
I. Al»ii( three niiarterg nf an hour,
rd/r. And coulil you are who wni
r'a I'aUiia-donr all ibal lime !
I. Ye*, Sir ; I saw Ihe caplnin
I fool of the Uihter at the duor,
n award, from llie lime 1 ivent ii|i
' came dnwn again ; lie lorkeit (he
fricil Ihe key oway wilh him.
Dn. Pniy, were Ihereaoy holts on
CDLUia-iloor ?
I. Ye>, there were Itolts oi> the
•rere put on vuun alter iU John
trd: sir John Has m ihal cablio
were iiut oo.
n. You aay yon heard a noise and
irder, hon for wcru you Inim the
wbeu you beard that cry of
I waa walking lo-and-fro the
I. [low far il thai from llie puriet'i
I taw Alahnny go in there.
1, Did you see any oilier peraon
Mahony ?
No, 1 did nol ; 1 taw Mahony go
Ihe cry of murder, but no other
1. Do you koow any llting about
capiaiii t
V<«. I will tell yon what bap-
We went and lecnred him. As
• laid hold of, he cried out, Iley I
tveldonei* We lold him his hm-
J, and ihat he had aonie con-
id, Whni if the vilUiiiB baie
IfTotber, can I help il P I know
. Did you see roe io the cabbb
No, Sir, I don't lay you were in
itr. Ur. Goodore, Ihe witness
M MW you in llie c»hhia, hut al
Gwderf. A. D. 1741. [KHt
Mr. Rtcnni*r. Uabony, will you uk ibia
Mahony. Are yuu certain tlial I wtw in ilia
cabbin when you hvard the groaua J
Bucltanan. I am positive you were there !%'
the purser'* cabbia, when 1 beard the murdw
Daniel Welter Ewom. 4
Mr. Vcmon. I think yuu are the carpenl**-
helonKine to the Uuby mau of wot ?
Weiler. Vea, Sir, I am.
Air. Vcrnoa. Give an account to 3fr. Iteif
cnrderand Ibejury of what you know relu(>
io^ Io Uii« biisiueu. ,
Weiltr. The 18tb of January last, about
ECfcii o'clock in the evenio-r, the captain catna'
OB boaiil in the bai^ ; as I attended him, (
obierved be ceeroed in a pleasant humour, 1 '
came upon ihe duck at once, and said be In _
brought n poor crazy man on board, who ha^
beeu the ruin of himself and laniily, and lha(
he bad now broughl him ou hoanl Io lake car|^
of him: he l<iok hini down to the cr '- -'*
and baring been ibere a little while, .._ ^,
my people came and asked for some bolls ; (
asked, WbatforP He told me, it was to put
on ihe outside of the purser's cabbio-door, fo,
bolt llic crazy genlleman in. I gave him %
boll; mller ho had nailed il on, became anf
John cried out. What
the door up f 1 answered, Nn. I ordered tha
door Id he opened, in turn the points of thai
nails. The door being ojiened, sir John aekeif.
whether ihe carpenter »•■ iheie? I told him
I wasibeman. Tlie centinel told meno-lmdr
must go in there ; lioweier, I went in, whiC%
they turned the puiou of tlie naila. Sir John
bid me sil down, and asked me. What dow
my brother mean by bringiDK me on board ia
this maoner, to murdtr me? No, Sjr, Kays I, 1
hope not, but to lake care of you. tie asked,
me, if his brother told me that he naa madf
I anw no more of him till next mnruiug.
Mr. Vtrnon. And what d<d you lee ifaen f .
Wttltr. Neil morning ihe lieuteuant tent
me down to *ee if air Juha was dead. I went
down, and asked the centinel for the ke^ ; ba
lold me Ihe captain bad been there lu iha
night, and had taken awny the key in hia
pocket. I broke open the cabbin door, and lir
John was lying on ooe side dead, wilh his right
le^ half up bent, his hat was over hia face,
Willi blo'id beipatlercd about hi* mouth ana,
noae. I went directly up, and lold the lien>
tenant of il.
Mr. RecoTiltr. By whose ordera did you put
the Iwlts on (lie door ?
Wdkr. One of my people ramc to me for.
boitt, and told me be was onlercd bv the cap-
lain to put llie bolls on ; and jiiiuu ol ibem ever
came for anv thing to be auue, wiihoul au '
order uf an officer. .
Eduinrd Jaart awora.
Mr. rcrncn. Itlr. Jones, t think vnuare ihc,
cooper of tha abip Kiibv ?— tfiMT*. i'e*,lJU. -«
3X
10«S] U GEORGE II. Trid cfCapiain Goodere tmd M. MJumg, [lOM
Mr. Vemm. Were yoii on bo«rd upon Sun-
day the 18th of January laet?
Jojiet. Yee, Sir, I was.
Mr. Vernon, fn what cabbin did yoo lie that
nijprht?
Jone$, I had no cabbin, bat I made bold to
lie in the slop- room that night, hafingf my
wife on board.
Mr. Vernon, Pray what it that yon eall the
•lop- room P — Jonet, it is like a eabbin.
Mr. Vernon. How near is the slop-room to
the purser's cabbin ?
J<me». Nothing bnt a thin deal-partition parts
it from the purser's cabbin.
Mr. Vernon, Will yon relato to Mr. Re-
eorder and the jury, what yon know aboot the
murder of Mr. Goodere's brother: tell the
whole you know concerning it.
Jones. About Wednesday or Thursday befbre
flib bapj^ened, the captain said to me, Cooper,
get this purser's cabbm cleaned out, fiir he
•aid he expected a gentleman shortly to come
on board. 1 cleauM it out ; and on Sunday
evening the gentleman came on board/ when
the people on deck cried, Cooper, shew a
light. 1 brought a light, saw the captain
going down the cock- pit ladder, the gentleman
was lianled down : he complained of a pain
in his tbi^h by their hauling him on board.
The captam asked him, if be would have a
dram P He said no ; for he had drank nothing
but water tor two years. The captain ordered
Mahonyadram; lie drank it: he also ordered
one Jack Lee to put two boHs on the parser's
cabbin-door. The ^tleroan walked to-and-
IVo the pur8er*8 cabbm while they were nailing
the bolts on. He wanted to speak with one of
the officers. The carpenter told him he was
the carpenter. Says tne gentleman. Do you
understand what my brother Ham. is going to
do with me? Ana said. His brotlicr tiad
brooght him on board to murder him that
night. The carpenter said, He hoped not, but
what was done was for his good. The captain
said. They must not mind what his brother said,
for be bad been mad for a twelve-month past.
And the captain went up again, and went into
the doctor's room. I went to bed about eight
o'clock. Sometime about eleren o'clock nt
night I heard the gentleman knock, and said,
He wanted to ease himself; to which the cen-
tind gare no manner of heed. Is it not a
•hame, said he, to keep a gentleman in, after
this manner? At last, some other person spoke
to the centinel, and says. Why don't you go
Up and acquaint the captain of it, that the gen-
tleman may ease himself ? Soon af\er Mahony
comes down with a bucket, for the gentleman
to ease himself. Mahony sat down in the
«»bbin, and he and the gentleman had a great
deal of discourse together : the gentleman said
tie had been at the East-Indies, and told what
he hsd g^t for his merit; and Mahony said,
some by good friends. I heard the gentleman,
after Mahony was gone, pray to God to be his
comforter under his •fflictiona. He said to
liifflfslfi hekneir that he wu gdof to b«
dered, and prayed that it miglit oometo Ngbl
by one means or another. I took ■• Mtiessf
it, becaose I thought him a emy mn. i
slept a little, and about two or tlwen o^sbdE
my wife waked me. She aaid, DonPt yen
hear the noise that is made by tho goMlamsaP
I beliefs they are killing biro. I tlwn be«d
biro kick, and cry out, Here are twenty ni-
neas, talkeit; don't murder me; MostldRl
must I die! O my life! and gave •ereralkscfa
with his throat, and then lie was sdlL 1 gil
up in my bed upon my knees ; I oaw
glimmenng in at the crack, and eaw thati
man, Mahony, with a candle in his I
The gentleman was lying on one side. Cbofci
White was there, and he pot not bio band li
pull the gentlemsn upright. I beerd Nahsaj
cry out. Damn ye, let as get bis watch ort;
but W hite said he could not get at it. I r^^
not see his pockets. Whito laid bold of
went to tumbling him up to get out hii BMetf,
unbuttoned his breeches to get ont his warn;
I saw him lay hold of the <»ain ; Wbitonff
Mahfmy the watoh, who put it in bis poiift;
and Wliito put his hand into one of the gcudc-
man's pockets, and cursed that tliere was is-
tiling but silfer: but he put his hand In ibt
other pocket, and there be found gold. Wbile
was going to give Mahony the gold : damn yc^
says Maliony, keep it till by-aad»by.
"Mr. Recorder, lu what posture didsir Jabt
lie at that lime?
Jonei. He lay in a very uneasy manner, with
one log up; and when they moved liini, be
still remained so ; which gave tne a aospician
that he was dead. While pot bis hand in •Bo-
ther pocket, took out nothing but a piece of
{>aper, was going to read it. Damn ye, nil
dahony, don't stand to read it. I saw a per-
son's bund on the throat of this gentleman,
and heard the person say, 'Tis done, aai
well done.
l\Ir. Recorder, Wns that a third persDo's
hand, or the hand of Mahuuy or White?
Jones. I cannot say whether it was a tbiri
person's hand or not. I saw but two persons in
the cohhin, I did not see the person, for it wai
done in a moment. 1 can't swear 1 saw way
more than two persons in the cabbin.
Mr. Recorder. Did you take notice of the
hand that was laid on sir John's throat P
Jones. I did.
Mr. Recorder. Did it 8]»pear to yon like Ibe
hand of a common sailor ?
Jones. No ; it seemed whiter.
Mr. Vernon, You have seen two hands bdd
up at the bar. I would ask you to wbidi of
them it was most like in colour?
Jones, I have often seen Mahony's and
White's hands, and I thought the hand wsi
whiter than either of theirs; and,! think it wai
neither of their handa by the coloor of it.
Mr. Recorder. Was sir John on the floor, <ff
on the bed ?
Jours. On the bed; bat there waa no shesla?
it was a floek4wd. and nohedj had Ma Mn p
groat while, ' ^
jfer the Murder iffSir John GaoJerf.
A. D. ITU.
Hr. Fenm, How long d'u) the criei uid
»ma* wkich you beard coaliuue t
Jmut. Noia grpol wbile: he ari«i like a
pettea ipiagrout i>l' ilie world, very Jov. At'
njr bearuig it, 1 kouIJ Iidvm (^ out to lli«
anMB tiine, but mj^jfu di=<ire>I me not i<> ^o,
fir *be wu ttnii tbere was Mnicbody al ili«
daor thai would k Jl me.
Mf. Ftmon. (Vhal ujnre An yon know cou-
MraiMg tliia matter. Of ol'Mnhaiiy uiiJ VVliite'a
Whs aibrwanis |>ut uu sUaie ?
JiHM. I lieardfBooie talkinf; tliat the y«nl
«M t« gn to bhore about luar or the clock to
ifcs mnttinv, and Kume of ut were called up,
H<1 I iat|>urtuned wy wife to let me go «ii(. I
e«IM, and asked wlio i« ceuiiiicl? DoDean
BnchaiuR ootwcreil, It is I. Uli, says 1, i» it
yau? I tb«n thniiifbi myself nate. I jum|it
vai ID toy ibirt. ireiit to him ; »nys I, Tliere
Imw tftta a dcvilinU iioiM lo-Disht in the
caliUa, l>uiicao, du yuu know aay tiling ol' the
nnierf I'Wy hate ueit* inly killed the gentle-
■MtgWhsliiball III do? 1 went to ihe cabbio
AMrwbcrelbcdoalor'imale lodged, ask eil bim
IT ht had heard any thing to-iiiiibtf I heard a
mat noiai?, aaid be. I believe, said I, llwy
MW« lulled ibal Kculleman. Me aaid, he be-
ftCTBi) M too. I drawed aaide Ibe acutlle tbat
fadiwl iolo Ibe purser's cabliio from the
•Mward'Krntim.aaJ cried, Sir, if youuealite,
tfUnk. Uc dill nol speak. 1 look a Ion;.'
•tick, and endcainured lo muve him, Imt found
iMwaadvad. 1 told Ihe doctor*! oihI", ihal I
ibaoght h* WM Ihe pro|icr penoo to relate lli«
■«ter I* the officer, bul be did Dot care lo do it
lb«a. ir yoti »dl not, I will, aaid I. 1 weot
■p IM the heulenaut and desired him to come
MU«f biacabbin to me. What is ibe matter,
nid bcF I told him 1 belieTed there bad been
mfdw Gommitled ia the cock-pit, upon Ihe
(MtlHnau who wbb brgui[ht ao board lail
■gilt. Oh '. don'l any »o, nay* ibe heutcnaot.
In Umi intcrini, •rhdal we were talkiugr abuul
k,Ur. Marsh the midBbipinai) came, and n»i4,
Utat there wiM an order lo carry White and
Kalinny ou aliore. I llico awure lliey aiMuld
Mt go on shore, for there wan murder oora-
■liiied. 'I'be lieutciumt Eiid, Fray be easy, ii
ean'l be *o ; I don't believe the captaio would
do Bnv auch thing. That gentleman there,
Hr. Marsh, wciit lo ask ihe caiitain, it Blahooy
Msd While musl be piil on shore? And Dlr.
Jlarah relurned again, and aaid, ttiat Ihe cap.
ttin aaid Ibuy kliould. 1 then aaid, it ia cer-
lainly trocibat the genlleniBDis murdered be-
■wecn them. I did nut aee Mabooy and White
Uiat morning, because ihey were put un ahnre.
1 told lbi> lieiiienaDt, tbat if ba would nut lake
cva of Ihc mailer,'! would wrtM up lo tlw Ad-
niinlty, and to llie mayor of BriMol. The
iimtonaDl warned the ca)iiain In drink a glase
of winr ; the captain would not come out of
kM otUiiB : ihun the lieuluant went in first ; I
~ I told the captain, ihil my
kcnk* open, and 1 deairM
Sli'. Recorder. Mr. Goodere,
Jones any qucsliona '!
S (Jaodrre. Ou you knon whether llie a
ahipiuaD waa tent away ou the king's busin
sr clue only lo put ibose two men no sbore?
Jones. 1 kuow not ) you were the oaptain of
Mr, RtcarJer. Mihoiiy, will you ask thia
witueeaauy iiufisUoDS?
JUulumy. l)id you see me lay baud* oo the
gentleman?
/aa«t. Ye4, 1 did, ai 1 bare already related.
Margartt Jonrt sworn.
Mr. Tcrnoji. Ura. Junea, pray BCi|Uaiot Hr'
ftecorder and the >ury, what you know abuu
Ibe murder ul ur Jubu Dtneley Coodere (tha
geotlemaa onlered by Mr. Guodere into ika
jkurset'a cabbio).
Mra. Joiiti. About seven o'clock in the even-
ing, tb: ItJlli of last January, Ihe captain
(haviog been on iliore) came en buttnl, and
came down inlo the cock. pit, and asked if the
cabbio waa clean ? My busbaud answered, YCf.
Oa wliicb the capiaio gave orders to bring
Jown ibe gentleman ; aud the captain said lo
llie docior, l>nutiir, 1 bate got an old mail
fellow here, you muit •loclor bim up as well as
you can. Tliey brought ihe gentleman into
ibecabbip; ibe oaptain ashed bim- bow he did
now ? The geotlemau complained that he bad
agreatpoin in hlsUiIgh, be »aa hurled by tha
Dieo's hauliog him as lliey had dune. Tba
CRptalu luked him if be wuuld dHok a dram of
mm? He aosviered, No; fur he aaid he had
ilrank nothing bnl water for two years psM.
Tbe captain gave a dram lo several peraoM
lliere ; and he gate orders for some Eheels lo be
brought ; and be nid to Rlaliouy, Aa his clotbca
are wet, do yoti pull them olf. And the gen-
llemao snlil lo Mahony, Don'l strip me, fellow,
uniil 1 am dead. The genilemaa said, Brother
Sam. what do you intend to do with me?
Tbe cai>uin told hira, that be brougfal him
lltere (o save him from rotting in a gaol. About
ten o'clock Msbony was leti theie; ike ge»-
tlemao de&iicd bin) logo; bul Mohonywid,
1 have orders to Bbiile here, to lake «are of you.
Tbe gentleman uid tn Mabooy, X can abida
by niyavir. Before Lhe cnplHin neiit away,
Ite bid Mabony lo see if Ims brother bad
aoy knile obniil him. The genllemau gar*
up Ilia kmte U) Mabouy, desired him I*
lake care of it, fur it waa his mhi's Loitc.
Tbe gentleman aakcd about lhe kntle me-
ral lime* in (he night. About twelve a'doek
1 went to *Wp; about Iwu u'ch>ck I awaked
again : I bearti tbe gentleaian talk to Mabotty,
but Mabony adviseil llie gvnllaman to g« la
sleep. He aaid, I csunoi sleep. Tbey lalknl
together a greal wliik. Mabony said, I atn to
go on sbure iu tbe morniutf. and if you baTa
auy letters to Gctid lo Ikislul, I will carry tlieia
I'ur you. I heiril Momebody nay lo the geHle-
isiao. You mnsi lie ilili. nud nol speak ■ iverd
far your lilc. Hunn minutca after J lieard *
- itotiggltng ; irlui a ma, X^^^
1Q51J
14 GEORGE II. Trial ofCaftain Goodfsn and M. Mahany, [lOjS
yety Mid I, we can't stop them neitkor, seeing
they ha? e the captain*! orders. Then went
Joocf up forthwith, and, 1 believe, told the tieu-
lenant ; and i alM» stent up to him just afler,
^d loM him, that I believed sir John wai ac-
tuatlv inurdored ; fur, said I, there hafe been a
terrible noise in the cock- pit to night, and the
captain himself was there- this morning when
'twas almost three o'clock, and the men that
were with bim are^ng on shore. The lieu-
tenant answered, that he could not stop these
men from going ashore, because the captain
bath giveo them leave ; so^ said he, we must
let it alone till rooming, to see whether the gen-
tleman is dead, or no. About eight o'clock in
the morning I went to him again ; but he told
■M it was best to defer it till we did see whe*
tber the oaptain sends down to him, or not. It
is» said he, no way proper for us to think of
seising the captain, till we see that the gentle-
man is actually dead, and have reason to think
be u murdered. When the captain's breakfast
was ready, he sent for the lieutenant and me to
come and breakfast with him : accordingly we
did ; and soon after there was a shore- boat
came towards us, and then Mr. CMmroberlayne
came on board, and went to the lieutenant's
cabbin ; and the lieutenant told that gentleman,
that they were then going to seise the captain,
ibr it was believed that 1^ had been accessary
to the murder of his brother. Imms^istely a
message was brought by one of the men, that
sir John was dead : upon which tlie oaptain
was forthwith seised by eight ur ten men.
Mr. Fernoa. How far was your cabbin from I
the pnrser^s f
Dudgeon, I can't say certainly, but beKere
•boiit three yards.
Mr. Vernon. Did you view tbe btxly of the
deceased whilst he lay dead in the purser's
tMin? -^Dudgeon. I did.
51r. Vemou. And did yon find any visible
roarkit of violence upon him ?
Dudgeon, 8ir, I saw no rope, bnt he had a
neck-ctuth about his neck, and there were some
marks in his neck, which looked like the
scratching of naiU ; and 1 believe that he vtas
strangled, the blood came out of his nose and
mouth.
William Macguinit sworn.
Mr. Vernon, Were you on board the Ruby
man of war, at the time when this matter hap-
pened?
Macguinis, Yes, Sir, I was.
3lr. Vernon. Then give an account of what
you know concerning it.
MMcguinis. The niglit in which the gen-
tleman came on board, I was appointed to be
the centinel at twelve o'clock ; hut when the
gentleman came on board, i was in my ham-
mock. 1 was calletl np to stand centry in tlic
gun-room ; and (please you, my lord} I had
not been long on my post before 1 saw the cap-
tain come down ; and soon after 1 saw Mahony,
that msB there (poiming at the prisoner Bia*
.bsoy) ate come down. 1 stopt bkm^ sod
asked bim whore be was going f Damn yoor
blood, you son of a bitch, what is that to >oa!
How busy you make yourself. And wfaea tie
came to the bottom of tbe cock -pit ladder, I
heard him say to another man, Come here, this
is the way. But who it was he spake to, I
know not. This was a little after two o'dock.
The captain espied me, be made towards me^
and waved his naked oullas, and said, Stad
back ! stand back !
Mr. VemoH, Where was Blr.Geodere,vba
he advanced towards you, aad bid yea slwd
back r
Mttcgumii, Tbe captain was down is the
cock-pit then.
Mr. Vernon. Had he any tbing in bis buif
HUcguink, Yes ; he had a ciitles. IbrneHi
Buchanan had been standing cenUoel is ibi
cock- pit, but was released by tbe capiaio.
Mr. Vernon. What more did yon seef
MacMuinis. I saw Mahony go into lbs psr^
ser's cabbin, and afterwards, I saw tbe captais
and Mahony come up again from tbe csck-fiL
Mr. Vernon. About what time?
Macguinii, I believe it was tlien aboet ibm
o'clock.
Mr. Recorder. Mr. Goodere and Mahsay,
do either of you ask this witness sny i|ncBtisBiJ
S. Goodere. No.
Afa^ony. No.
Mr. Tra//:«r sworn.
Mr. Vernon. I think yon are the city nuunf
Walker. I am.
Mr. Kertiun. i«ook upon that watcb, and fiH
an account liow you came by iL
Walker, I found it in the necefssary-bosfti
at the Brock ware -boat, a public- luruse on tk
Back.
Mr. Vernon. Who kept that public- bouse it
the time yon found tlie watch ?
Walker. One CuUiford.
Mr. Vernon. Was it accidentally^ or spei
search that you found the watch ?
Walker. I searchtnl for it iu the nccessan-
house, by tlie justice's orders ; when I fbus^
it, tlie case was in one place, and the watch it
another, about a yard apart.
Skrah CuUiford sworn.
Mr. Vernon. Look upon that watch. Mil
CuUiford ; you hve at the sign of the Brack-
ware-boat on the Back, do you not? j
jS. CuUiford. Yes, Sir.
Mr. Vernon. Do you take that to be tbi
same watch that was found by Mr. Walker, tki
city mason, in your neoessarv-housc ?
S. CuUiford. Yes, Sir ; ' I believe it is tbe
same.
Mr. Vernon. From whom did you receive ii
beihre it was thrown into the necessary -houie?
S. CuUiford. I received it from Mahopy^
hands, that man there ; (|u>inting to the pri-
soner Mnhony).
Mr. Vernon. How king before be was appn-
bended?
S.CuUiforA. IbadiliDmy
t, uid two hour* after he vat
And wlitl became of it after-
This yoDnrman^i
mj) wu drinking' iu my Umwe,
lie waich, delivered ii t« ine, and
^tef ilfor him until be did c*l)
^W after I had bubiiieas to po out,
wn, and had ilie wuldi in my
|1 camii liaelt, my children lold
bnalile had li«en therr to uarch
t, which much ■iirprii'.rd ine; I
Mutderiif !\ir Juhn Goodere.
A.D. lT+1.
rm^^
w the WBtcb into tlie nerfwary-
1 should come in trouble.
4iai FuticU tffont.
Mf.Fus«ll,Iook
|i»e an aceouiii Ii™
a thai hand-
I?
bad this handkrrehirr from Ma-
19ih of January InM, the night
rhim, i found it upon his neck;
aeized, he look it ofT; I took it
t, it was bloody iheo ai '
f pockei.
tUtM. chief clerk to
clerk, nmm.
, Mr. Mitcbel, what paper ia that
[le Examinolion ot'HUtiheit Ma
itoner at ihe bar, laken bcl'mi
tf esq. mayor.
. Did you see the [iriaoner fi[i'
Bbia ureaence ?
I. Sir.
, i)id he do ii volunlarity T
' m.
Did you Bee Mr. Uayor tigo
t^ I did.
, Tbeii I ilMire it may be read.
^^-r. Read the Examiualton.
t Etaminatiou iu these worda ;
(Dly of Bristol, to wil. The
OHialiODand Coafessioii of Mol-
k uatiTtDr Ireland, Bffeil abom
!■ cxaminant coolessflh and
BtaixteenorsefenteeDdavi;
tt UDC*, he was deiired by
B ofilie Ruby niBo of war, i
■rwtd) in ilie ciiunly of the city of
|e bi*t the captain B, brulbcr, »ir
Ooudcfe, bart. and bnna; liioi on
lau of war ; and that oii 'f'nes
CMIiiuaiil, and the crew betung-
_ I of wBf'H bargf, and F-ilwsid
John HoC'Grnree, nud Wdliam
Uteer'a Dwa, were placed by tbe
I ttie Whiietbrt alehouae, 0)1-
'iirr/b-itTt't^
. Ill d<i II Iben.
■^ i,i_,.^..^::.l^tiitol ihcm.
and Georcu Beat, coekttero of the bnre«, lbs
said Edirord Muc-Danirl, John Mae-Gnrer,
Hamioon, and uiie Chartps Brycr,
pnrateei *•> men aa atiiresaiil, wwe again pleM<l
at the Whjiu HarlalbresBid, lna(»zethe said
air John Dincley Gooderv, ami waited tlterefor
mmir time ; and he coming out of Mr, Jariit
tjriiilh'a hiiuae, and cnmiAu under St. Au^ua.
tine'f cburuh-yard wall, uiis eiaminanl and
Ilia comradea puraaed him, and near Ihe ptinip
ibere they came up wilh him, ond told bin
tliere waa a gtnltFunn wanted lo aiKak »::!>
him ; and he asking wh*re tbe eenlleman
VIM, wsa atiawered a little way ofl*, and ha
went quietly a little way ; batuDoneappeariotc
he resialed'and refuieil lo go; whereupon lliia
examinaul and eomradea aomelimef Mrcibly
hauled and puxlivd, and at other timea carrieii
himSTcrKl. A u^uatine'a biitit, captain Day'a
rope-walk, end along the road to thefiot-well,
(captain Goodere being sometimes a lillle be>
lind, and (ometimea amungal the crowd att
the nay) till they came to ilie shp where tha
barge lay. Bui fir John was very unwilling-
tn go, made the utmost rcsiatance, aud cryed
out murder a great many times ; and when be
waa put into the barge, called out and desired
somebody would go lo Mr. Jarrit 8milli, and
tell bim of his ill usa^e, aud that hi* name waa
sir Juhn Dineley ; whereupon the captain
cbpl bi<> hand on lir John's mouth to ston
liii spraking, and told biro not lo make such
a noise, he had t^ol him out of the lion'a
estate ; and bid tbe barge-n
which ihny did; and in Ibnr passage to the man
of war, tbe two brothers bickered all the way :
But when they came to the man of war, tir
John nctit on board as well as be could, and
the i-«plBiu took hitii down into the pur»er't
cabbin.and siaid a little time with him, anil
treated him with a drnm of ram, and then left
him lor a rnnsiderahle lime; and in theiDtertm
sent f'lr this exaiuinant into hia, the captain'a
cabbin, and there told this eiaminant he muat
murder his brolber, fur that he was mad, and
should not lire till four o'clock in the morning.
And this esamiuBnt reasoning wilh him. and
lellini,' him be would not be concerned, and that
be Ilinn|*hl be had broogbtbim ther* wilhin-
lent only tn bring him to reason, and Ink* eara
Ibal he thoutd not aftend hia eflate in law.
and to have a perfect reivmciliaii'm : bill lbs
eaplaiu Milt insiitiiig, that as this examiuaiK
bad taken him. he should do it ; and Ibis rxm-
minanl Iheu saying, lie waa nut able in do it of
himiself, the cainaiii replied, if ibis exatuinaut
could get nobody dse, he and llna examinant
mast do it theroseltcs. And then ordered him
to call oDcEliiha Cole; and hebcingloo drunk
to andertoke sgch an alTsir, bid Ihi* examinanl
call one Charles White, a toy sluul lusty fel-
low, aud the cajitaio gave him a drain, and bid
bimsil down, and MOagaieelher drann, and
atkcdbiioifheconUfigbt,MidtoUhiin, Hert. _
K)35]
14f GEORGE II. Trial of Capldin Goodere and M. Mahmy^ [ lOM
ilialt bare a handsoine reward. And this esca-
miuant, the said Cbarles White, and thecap^
taiu, beinir all a(|;reed to murder the said air
John Diuele^r Goodere, the captain then pro-
posed the method, and produced a piece of half-
inch rone about nine foot long^, and Charles
White having made a noose in the rope, the
captain said, applying himself to this exami-
nant and the sai I Charles White, You must
strangle him with this rope, and at the same
time garethe handkerchief now produced, that
in case he made a noise*, to stop his moutli ;
and said, I will stand centinel orer the door
whilst you do it; and accordingly instantly
went out of his own cabbin, and turned the
centinel from the purser's cabbin door, and let
this ezaminant and White into the purser's
cabbiu, where sir John Dineley Goodere w^jb
lyiujg^ in bis clothes on a bed: The captain
barmg pulled to the door, and standing cen-
tinel himself, the said White first strangled sir
John with bis bands, and then put the rope
about sir John's neck, and hauled it tight, and
sir John struggled, and endeavoured to cry out,
but could not. And this examinant confesses,
that whilst White was strangling sir John, this
ezaminant took care to keep him on the bed,
and when one end of the rope was loose, this
ezaminant drew and held it tight ; and thus
each bore a part till sir John was dead ; and
they bating rifled the deceased of bis watch
and money, knocked at the dooc to be let out ;
and the captain called out. Have you don^ 't
they replied. Yes. He opened the door, and
asked again, Is he dead ? And being answered in
the affirmative, and haviu;jf a light, swore, by
God, he would be sure he was dead ; and then
went in himself, and returniog, locked the door,
and put the key in his pocket, and they all
went together to the captain's cabbin ai^ain,
and there this examinant gave the captain sir
John's watch, and the captain gave this exa<
minant his own watch in lieu of it; and then
the captain gave them both some money, and
White afterwards gave this examinant ei^ht
guineas as part of the money he took out of the
deceased's pocket, and then the captain order-
ed them to be put ou shore in his own boat.
And further this examinant confesses and saith.
That before and after the murder nas com-
mitted, tlie captain, Charles White, aud this
examinant, consulted what to do with the
corpse ; and the captain proposLMl to keo)! it two
or three days in the ship, and, as hu expected
to go to sea, would sew it up in a hammock,
or something else, and there throw it over-hoard:
And that before this examinant and his com-
rades were sent to seize sir John, as is before
set forth, they were ordered by captain Goodere,
that, if they met with any resistance, they
should repel force by force, an<l were prepared
with short heavy sticks or bludgcuins for that
purpose. Matthew MAiioNr.
Mr. Itfcori^r. (Speaking to the jury.) Gen-
tlemtti, yon are to take notice, that this con-
liniiMi IS e? idtoce agaiost the prisoner J|a-
4
bony alone, and so far only ongfit you to rt-
gard it. It is no evidence, nor ought yon to
lay any stress upon il, as against the prisooer
GtKxIere.
Mr. Vernon. Mr. Recorder, we have gooe
through with our evidence of the liMt, and uere
we should have rested it, were it not that Mr.
Goodere, by his strict enquiry into the moI
where the ship lay, seems to questioo whetscr
it was within this county or Dot : A qocstioo,
which, I confess, I no more expected to bev
of, than whether we ourselves ve now witbti
it. However, to obviate all pretence of that
kind, and give the gentlemen of this jury si full
satisfaction in the point, as undoubtedly the
grand inquest for the body of this coanly bad
before they found the bill, we shall beg IrsTe
to call a witness or two, just to shew that KB|r-
I toad has been constantly taken to lie wiilua
the city and county of Bristol, and that ac-
cordingly the sheritfs' oflioers of Bristol, froa
time to time, have used to ezectite both tke
city and county process in King-Road ; wbacb,
i apprehend, wUl of itself be satisfactoty eri-
dence, without entering into any other dtsqids-
; tion of the county limits. Call Mr. Wint.
! John Wint sworn.
i Mr. Vernon, Mr. Wint, what oflicer are jM
in Bristol?
Wint. I am an oflicer to tbe sberiffii «(
Bristol, and have lieen so for these thirty yean
and upwards.
Mr. Vernon. Have yon been used, as so of-
ficer to the sherifis oi Bristol, to serve procev
in King- Road ?
Wint. 1 have served process in King-Roui
forty or fifty times.
iVlr. Vermm, How far down the river .'
Wint. Very often down as far as Poset-
Point.
Mr. Rtcordcr. What kind of process hvi
you served there ?
Wint, Town actions out of the mayor and
sheriifs court, and out of the l*ie|YOwder coort.
Mr. Recorder, Have you ever executed u j-
cess there which was directed to tbe sberintaf
Bristol i*
Wint, Yes, Sir, I have served sheriffs mr-
rants, or writi, issued Irom above, out of tke
court of Kiosr's-bench and Common - Pleas i*
tbe sherifl*s of Bristol.
Mr. Recorder, Mr. Goodere, will you aik '
this witness any questions ? I
S. Goodere. Yes, Sir : Is all that is csN
King- road within the liberty of tbe dty d
Bristol?— I^m^ Yes. it is.
S. Goodere. Are you sure of it T
Wint I know where the ship Ruby lay wai
within the city of Bristol.
S. Goodere. How do you know that f
Wint. Because 1 have been down with ibe
mayor to the Holmes.
Mr. Vernon, Call Mr. Lowden.
Mr. Lowden sworn.
Mr. Vernon* What officer sve y0O| lb
Lowden?
Jar the Murder of Sir John Goadert-
A. D. i7-H.
TrfwxJrfl. J hlTC \itca ■
uffioer in lliit rity | ^It.Rtcordtr. Wuany peraoaaayoii know
re aerval Uiwd nc- | 10 tiave taken care of liim in yuur i^arreli'
rarrBDli inide oui i Hn. Gethini. I ha>e lie&rd itie capMin Uik
I of We*UnioBter- | with Uiii cwii HckIot about it.
■9. Goodirc. 1 ihall i;ite jou nuJ tUe jur; ts
. . . ^ little Iroiilile ai nwy be. I bavu id eiidcouein
Ibe l)cnni.'v. ivc alwaj'i laku il tg be iu ihc li- i TeUlion to Slahooy »aA tVliiie't %ti\i\^ >w»y
ttoa>, toiTD HBfranti,
Ttfoa wtiu rrum the
uU, and the Ailmiraltri in Kiqg-road
Mif part or Kiii^-roaii uii the Huiiltiwaril
bertiei ol' Briitol.
Mr. I'trnoA. Mr. ReoorJer, ive lia*e ddne.
Hr- lUeoTiltr. Air. Uuudere, aad Maltliew
tlunugli
time to ruler upno jour Uelence.
. S. OuuJcrc. May il [ilea
fuur u'ultick in (be luoroius;, becaiiae it
barged ihiit I seci tiiem anny. The boat
ieiii awBj iu llie kiiu;'aMrtii-e to briog leilera.
Mr. Marth aworu.
ilpf
lo prove Dial
duordCTe>l LI . .
bW lo lake care ul'biio.
il I was iluiof; uiy
ther «i
P
Call Mn. Gcthlm.
Hr, Recorder. Wbal du you call ber id
prove f
S. Gooderf. I call lier lo (itotc, that before
ttjp brol^r was taken An board, I was tu t.ihe
n upper- riwm of ber to put him in, where be
■iffht be taken care iiflocnre hiamadnesB.
m.Rtcuriler. ^Vhat, Mr. (itiodere, >lo you
■dtnit llien that you did lake ynur brother on
bovd?
S. Coodcre. I do aJmit Ibat I carrjeil my
lirolber on board. I went in tbe boat alon^
with kiat.
Mrs. Gtlhiiu sworn.
S. Oocdert aira. Gelhiiia, did 1 not tpeak to
jau a l«rlnii;ht or three weeks before lay bro-
takea on board tbe &bi|i, to hare a
of you lo put him in, and that Alabony
haire 51. a month to take care of him ?
Ctlhim. Theprisouer, captainGoodere,
— - if I had not a garret tii lei hirn keep
in, for (hat be wai a madman : and
lin Guuderr ueier made it a secret that lie
lake and koep his brother as a raad-
»& Coodert. WhelAer I did not tell you thai
llaiuioy was W uke care of my brother a fort-
luchl ur tliree weeks before he was taken no
haard t 8peak lo the lime as near as \ou can
neoUrcl; and whether you knew I hat Mahony
WW Iu ha*e 5^ a month, anil that I made no
Banner of lecret ofil. and that I endeBTOnred
tabkecare ol'him as a lunaii<?.
Hr«. Gtthitu. l^r, I have already said that
yva ajHiketo me about a rnoui to put your bm-
Iber in. hut what yon mention about Mahony, I
knaw oulliiii)f of that.
Mr. Vnuaa. Pray, ii Kiog-rnad in the road
tofour houM?— Mr<i- Getlimi. No.lSir.
Mr. Vfnm. Was your garret a proper nlac
•f Mwummodalioii lor a tfentlemon, and om
who w«a eatcerned an Englith barooel, ihiiil
TM t Pray, do you keep a madhouse, uiadaoi
Mra. GdAiu. No.
Hr. Vernon. Don't you think sucli a con
taenianl woulil hare Wn tht way to hare
MM^himiBadr
«™v XVJI.
Mr. Marth. I had an order about eight
'clock the nl^ht air John Has brought oil
buard, lo go uu in the morning to Bristol for tha
kller^ friiui the Admirally, and about four of
the clock 111 the morning I was called up to go ;
but the lieulenant seemed much difordenid, anil
hid ine come to him before I sat oul. I waiie>l
r>n the lieulciiaul, and told him, titut White aiiil
Mahouy taid they had hberty lo go un shore,
that the captain had givea ihem tiberlv to t;o i
the lieutenant said, be knew uothing of il. But
aa it is always my way, before Icari^any
body olT, 1 said, 1 wuuldgn to the captain and
ask Icare. 1 went lo the caplnin, and asked
him, if White and Mahony had libertv from
him lo y^ on ahote ? And bo said. Yea, bt
Ihem CO.
rS. Ooodere. Mr. Marsh, did you go npon
Uie king's biisiaess, or on pufi>oie to take up
MuriA. I went about the king's business.
Mr. I'Vrnon. But il wai alter sir John was
brought on board, tliat Mr. Goodere ordered
yuu logo up 7 — Marth. Yes, Kr, it was.
Mr. Vernon. fJid any body else go up with
you, besides Mahony and While ?
M»T,h. No, there did not.
Mr. Vtrnaa. Did Mr. Ooodere gire you
orders lo ptii lliem on shore io soy particulat-
l)lace?
Marik. 1 win do justice between man and
tnaa ; the captain did not ^ive me orders tu put
them on shore in any particular place.
Mr. Vernon. U'ire they landed publicly or
priralely .'
hlanh. I put Ihem on shore at the Gibh,
about ail of the cluck in the morning'.
S. Gaviere. Now, may it please you. Sir, I
shall shew Ihal Mahony bad business at Bristol
that day by appoiulmeut, to receiie some wages
that WHS due tu him ; Ibrwbicb purpose I shall
call Mr. Uagg,
Ahrl Dagf, Reeperof Newgate, swotti.
5. Coodere. Do you know any thing of oap<
lain Menin, and nf Alahony's coming lo Bris-
tol on llie Monday to srltle an nAiiirwilh hioif
liiigg. There was one captain James Mer-
lin who sailed into this port, and on his coming
ivas charged as a debtor in my house, al tha
mill of some yer'ilemnn in Lnndon, iu an aelioQ
«f 3 or 4U0/. Mahony waa aae of liis aail^
I 3T
1059]
14 GEORGE II. Trial qfCapiain Goodere and M. Makwy^ [1060
until he was prest, and he chtrged the said
Meirin with an action for his wag^es. Captain
Mervin bad a desire to make up the matter
with Mahony. I went to the captain of the
man of war the Tuesday or Wednesday before
Ibis affair happened, which was the first time I
ever saw him, to the best of my knowled^ :
the captain said he would meet me the Mon-
day following, in order to accommodate the
difference*
Mr. Vernon. Was Mahony appointed to
meet you that day or not ?
Mr. Recorder. Mind the ouestion. Was Ma-
hony to come that Monday r
Vagg. The captain made an appointment,
my lord, to meet on the Monday ; and I told
Mr. Taylor the attorney, that Mahony was to
come on shore that day, to make up the matter
between him andMervin.
Mri Vernon. I would ask you another ques-
tion ; Had White too any affair to make up
at Bristol ?
Dagg. No, I know nothinflf of that.
S. Goodere, Now I call Bridget King.
Mr. Recorder. What do you call her for ?
S. Goodere. Touching the lunacy of sir
John Dineley.
Bridget King sworn.
S. Goodere. Mrs. King, will you gfire the
Court an account of what you know of the lu-
na^ of my brother sir John Dineley ?
Mrs. King. Please yon, my lord, I think he
was mad ; for he would ^ei up at two or three
of the clock in the morning, and call his ser-
vants up, and iall a singing ; and then he
wonld go to bed again, and swear it was but
twelve o'clock at night, and lie a- bed all day.
He would send his boy out all over his grounds
to pick un stones, and have the wheel-barrow
rattling aooiit the streets on a Sunday : he hath
ringed the bell to call his servants up to his
bed -side, and when they were come up, he
would ask them what they did there, and swear
they were come to shoot him ? He himself hath
gone over all his grounds on a Sunday to pick
sticks, and hath sent his servants to market
when there was none ; and he would be busy
in every thing, and hang on the not himself ;
and he hath been quite raving mao.
Mr. Vernon. Did you live as a servant to sir
John?
Mrs. King. I lived as a servant with him in
London, and he came down for the air to Tock-
inffton ; he brought me down to go to Bath.
Mr. Vernon. How long did you continue
with him P
Mrs. King. A twelvemonth. Sir.
Mr. Vernon, And how durst you venture to
live so long with a madman? He did not go
mad for luveof you, 1 hope? Have you lived
any time in Bristol ?»Mrs. King, No.
Mr. Vernon. I'hen 1 suppose you came but
now from Loudon ?_ Mrs King. Yes, I did.
S. Goodere, Do you believe be was a mad-
man F
Mt§, King. lo die actiimi thai I hvre tecu
by him, I have reasoo to think ha was a nsd-
man.
Mrs. Mary Stafford uwoiUm
S. Goodere. Mrs. Stafford, will yon M Ik
lordship and the jury what yon know of ar
John's neing a lunatic P
Mrs. Stafford. Sir John hired me At a
bouse- keeper in London, and told roe he bad a
great many servants, and he wanted a hooM-
keeper. When he brought me down, he or*
dered me to his seat at TockingtOD ; where, he
said, he had a great deal of company freqocat-
ly. When 1 came there, I found there wis
nothing in what he bad told me ; fer, inatead of
a {^reat many servants, he had bat one : a poor
old shattered house, ready to tumble dowi
about one's ears, and the noushold seods il
to pieces : he was a madman : for if Ihad Al-
lowed his directions in any tiling I shonkl bare
done mischief. He hath sent me and the rat
of his servants to Tliombury market, wha
there was none ; he hath ringed the bell to cd
his servants to come to his bed-side to him, aid
when we have come up to him, he hath asM
us, what we did there P Sir, aaid I, yon called
me up : be hath iaid he did not : and after we
had been there a quarter of an hour, he wooM
take a knife, fork, glass-bottle, or any tbiag
that came in his way, to throw at US| askinf if
us, What, did we come to rob him ? And 1 wai
afhiid of my life, to live with him. I do be-
lieve he was a madman, or else he wonld never
have acted as he did : he would go into tbo
kitchen, and take the pot, and bang it on the
fire. 1 style him a madman by his actions.
Mr. Vernon. And must he therefisre be
hanged himself like a mad dog, think you ?
Mrs. Stafford. I know nothing of that, Sr.
Mr. Vernon. How long did you live with
sir John ?
Mra. Stafford. Three months. Sir.
S. Goodere. Call Mr. Robert Cock.
Mr. Recorder. What do you call hio to
prove ?
' S. Goodere. My lord, in order to prove sir
John Dineley a lunatic. Mr. Cock, will yoa
give an account to my lord and the jury wait
you know of the lunacy of sir John Dineley P
Robert Cock sworn.
Cock. My lord, I have known Mr. Diocky
at Charlton for some years ; I have been seve«
ral times in his company ; I have seen hum do
several acts of lunacy, as a madman.
Mr. Vernon. Where do you live?
Cock. I live in Cumberland, when I am it
home.
Mr. Vernon. Are vou of any buainesaP
Cock. 1 am an officer belonging to his ni-
jesty.
Mr. Fcrnon. What kind of officer P
Cock. A sa!t officer.
5. Goodere. 1 will not give year lorUif
and the jury much more trouble. I am ca-
tirely inn«iceui ; they have not proved that I
waa \(teiu:nt at the death of air Jolui Piaely»
V
•n
for the Murder nf Sir John Goodere.
A. U. 1741.
10 pretence
8.Goo<le
lUr. Retorder. Dtm't ileceivo jiouiseir;
thiMiKb tliejr tia*e not |ifo*eil tb*! you wu ac-
tually ill tliu cabbln, wlien lir JoIid was mur-
dereJ, vet Ihey ha^e given evidence of lliat,
' ' b (if Iha jury ^ive ereilit tn) will nmoimt
enc« in tbp eye or Uie Uw.
I. Goodere. I ihatl now call some witnMsM
M mj' chancier, and likewise to stiew liow im-
pfobable it is, Ibnt I abould he ifuiliy or the
Aiunkrut'uy lirotbvr. Call Mr. Priichanl.
Mr. Pri/rAorrf«worn,
^^WOCT at the bur, maDy years : he always
^^Bi lb« character ol' n i^ood husbanil, a gaud
^^Hhrnr and a kind friend.
HQ[ Oaadert. I slmll call a person who saw
tt« will or air John Dineley ; and Uieti any
lody would lliiok that 1 ahould be the niaddrst
"mtm in the world to enmniit a munler thai I
fcDM* would he 40,000/. damage to me. It
kM my business, considering the circumstance
«r the will, and Ihut I wu air Jobu's heir at
liw, at all oeats to preserTC him. Call Mr.
ReTcreod Mr. Watkiat awom.
S. Goodere. Mr. Watkios, did not you tec
or hear the contents or sir Jobo Dineley's will,
and did not you tell me presently after tbe will
tn» Daado the contents of it, and Low long was
Jiwt belbre hii death .'
Walluni. It was aborc three months, or half
A year before his death, lo the beat of my koow-
laige. It was so long ago, asyoudioed wilh
BM «t Crupthume.
S. Qaodert. Uid you uot inform me, that
tbat will did cut me off of every thiog, and
gwc tlie cutate to the Foots ; and that sir John
Md «Do so.>
Wetkini. Hir Jobo told me that be had made
1m will, and had cut bis brother ulTfrom every
■king : and tbat lie bad i^iieu the estate to the
VmtM: of which 1 (old Mr. Goodere soon
8, Qoodtrc. How long n^o 'i
Watkint. I can't tell exactly ; about half a
jTMr or three quarters of a year, it nii^t be.
Hr. Fcrnoii, Tfac^ have been givintfair John
iha character of beiD£ a lunatic; 1 iTiink, Sir,
yoa are inioioter of Cropthome, and must, I
BrvMime, hite been pretty ronversant with sir
iota, and a fr«i|ueDt witness of bit behaviorir
in tlwt DeiKtibourhaod ; be pleased iburelbre to
tpcakwhai you know, as to bis sanity or io*
■mhiv of mind.
Walkmi. 8ir John's character in my ojiioion
hath bam vory much micri-presenled to the
wmU. During m* acquaintance with him, t
bars bond btni to be a good uti^hbour, and a
kaad triMnl j he woa a man nf si roog pataioiia ;
if any one af^nted him.he wuuld letthopaMy
■bow llMt bo did resent it. All hia tenants of
Mir cnantry, and Ihoie I have converted with
my, tbai be was one <<f the beat nf landlords.
Mr. Vrrnait. I dou'l ask vou, Nir, concerning
hlamoialcharauur; bulWHtberbe was fohia
MM^WMte
Witlkini. Jn Ilia senses! I aaw hhn
Christmsa. he waa making up bis i
with several of liis tenanla ; be was then id
very good understand in e.
Mr. Vtrnon. Pray, did you ever know faim
vi&iied with lunacy ?
Watkiai. J never did; but on the conirarr,
1 take him to liavc been a man that always
Mr. Vernon. Do you know, Sir, whether
thera was any misunderslauditig between the
two brothers ?
Watkint. There has been a long mbuader-
standing between them.
Mr, Vtrnon. What bare you heard the pri-
soner Mr. Goodere say, in relatioa to air Jobo'i
making bis will ?
I\'atkiiu. i believe he told me, that dr
John had not power to make a will : I told
him it was my opinioD, if they would be re-
conciled together, air Joho's will would not
Mr. TAonoiawom.
S. Goodere. Mr. Thomas, bow long; bave
you known me, and what waa my chnracterF
Thotiuu. I have known tbe prisoner, Hr.
-^JaiDuel Goodere, a great many years, bate
eery often been in hi* company : I never found
but tbat he ever behaved with all the good-
nature that possibly could he. I always took
him to be a good-nsiured weU-behaTed man,
and be is a man well-beloved in his country.
Mr. JihJUldaworo.
Athfittd. I have known Mr. Goodere a great
many years, I never heard any ill of him till
this affair ; be is reputed in the country of a
general Kood character. 1 have been concerned
for liim 111 several suits, I never knew any ill
Mr. Venom. Pray, Sir, wbatbave you beard
Mr. Goodere tay, concerning his broUieT'i
cutting off the entail of his estaief
Aihficld- I have heard Mr. Goodere saj,
thai hia brother bad no power to cut off tb«
entail,' and that he would aet the recovery
naide ; I hare heard him say that forty timaa,
Mr. Kemon. What is your opinion as to Iba
sanity or inaanily of sir John ?
Ashficld. i never thought him a msdman; I
always thought him one of tbe best uoderainnd-
■ng in the whole family.
Reverend Mr. Rogeri swora.
Rogert. 1 have been acquainted with the
|>ritiiner Goodere several years; I know be
haih behaved very well, done good offices to
all mankind ; and 1 never beard any other of
Mr. George Farceeil sworn.
Fortevil. The priaoner Goodere hatli been
my neight»aur for l»urleeu or filleen vears ; he
hath always behaved well in his neighhourhiHid,
and bns a very good chiiracier ■, Iw oiWAmei-j
Mieii4ed\a»t\wiAVw'K« w^j^wto-jiHW^
1063]
ttfCajimii
f.
would be there at prajere almost every day ;
he was always a sober mail, and a good-hu-
moured geotlemaD. 1 thought him to be a
gooft man.
5. Goodere, Mr. Recorder, I would not
ire you and the jury any more trouble in re-
atfon to my character ; all I have to say fur-
tlier is, my beintr deprived of evidence in my
behalf, by reason of my disonler and the sick-
ntM in the gaol, which hath prevented my
friends from coming to me to adviKe me about
making my defence ; and also of havingf several
witmsses from on lioard the ship, uhieh might
have been of great service to me. 1 had an
order from the lords of the Admiralty to re-
quire them to btay on shore, if 1 had occasion
lor them ; but, as the ship was gone before the
letter e.ime to my haiuls, I have no occasion
DOW to tell the names of the {lerions.
[Mr. Goodere held up the letter in bis hand,
but the Court did not receive it.]
Mr. Frederick. Mr. Recorder, there have
been several aspersions published in the news-
papers, to the prejudice of Mr. Goodere ; there
das been a paniphlft also published, which I
have here m my hand, entitled, The Bristol
Fratricide; but I hope the gentlemen of the
jury will take no notice of, nor be influenced by
them against the prisoner.
Mr. Vcrjion. 1 dare say they will have no re-
gard to any book, but that on which they have
been sworn : those who know them and tlicir
characters must certainly think so.
[The Jury declared they had never seen
any such pamphlet, or papers.]
Mr. Vernon. Mr. Recorder, we must beg
leave to ask Mr. Jarrit Smith's opioiou, as to
sir John's being a lunatic, or not?
Smith, Mr. Recorder, I am surprised to hear
it said by some of Mr. Goodere's witnesses,
that sir John Dioeley Goodere was mad; 1
kneiv him fourteen or fifteen years, and con-
vorbe<l with him both in person and by letter;
but never discovered that he wuk in the least
disordered in his senses, I always took him to
be a man of sound understanding. On the
Sunday, the day before his death, he expresi^ed
himself with a great deal of good- nature aud
affection at the sight of his brother.
Mr. Shephard. Mr. Recorder, with humble
submission, 1 am instructed to offer it in evi-
dence, that the place where the ship lay is not
witliin this city und county of Bristol.
Mr. I'crnon. We have already proved it to
he within the county of Bristol ; nor is there
tiie least reason to apprehend, that Mr. Re-
corder will extend the rule of ' Boni Judicis
' estampliare Jurisdictionem' to the extendint;
of the county an inch beyond its ancient and
known limits : he is too just to attempt it. On
the other hand, we may depend he will not
vuffer the county- limits to be abridged, but
* servarejusillufsum ;' and (O be hath hitherto
done) discountenance all encroacbuents on the
lights aad fraochuiea of Bristol.
Mr. Recorder, It has beeo proved, aw! ia-
deed it can't be denied, that at the time Iheta
in question was commit<e<i, the ahip bv n
Ring- road; and I think the evidenee mkiek
has f>een given of the exercise of juriadiciin
by the magistmtes of the city and coontv «f
the city in Kmg-road, and of the sberiff^^ lA"
cers executu'.g process of all kinds thcte,
amounts to a full proof that King-road isviili-
in the bo«ly of the county of the city of BrjilsL
It is the same sort of proof by which the baoa^
of every county in the kingdom must be si-
certained, the d«)ing acts in the place in qoci*
tion by the officers of the county, which nMH
be douc in that county, and no other.
S, Goodere. All King- road is not in BroM.
Will your lordnhip please to admit me to csl
Mr. Hill P He is a gentleman that has survevdl
the situation of the place where the ship faj,
and will describe it.
Mr. Vernon. I am sorry to find Blr. GoodcR
driven to this subterfuge in his defence, 1
could wish he had one to make on the merits;
if he stands upon his innocence, what oeedtf
all this stir about the station of the ship, m
where on earth can he hope to be tried befoic
a fairer, or more impartial judicature iImb the
present ?
S. Goodere. Call Mr. Hill.
Mr. Recorder. Mr. Goodere, if yoa eansbcv
that any part of King-road is, or ever m
esteemed to be in any other county than the
county of the city of Bribtol, I will hear yoa;
otherwise it will be to no purpose to describe
the situation of the ship, since it is admitieil
that she lay in King- road. — Mahuny, haveyos
any thing to say?
Mahony. I hope your lonlship will comidK
that I was a poor, pressed servant, and I «u
drunk when 1 made the confession, and I wsi
frightened out of my wits.
Mr. Recorder. Yon say you were dmsk
when you made the confession ; it is possiUt,
that niglit when you were first taken uA
brought before the magistrates, you wm is
liquor, but it seems your confessioo ww,boc
taken until the next day.
Mahony. My lord, I was in Bridewell; I
did not sleep a wink the whole night.
Mr. Kecoider. Have you any witnesses te
call ?
Mahony. No, please your lordships, I an s
stranger here, I have no witnesses to call.
Mr. Vernon. Mr. Recorder, 1 apprehcsd
we are in a case exceeding clear against both
the prisoners at the bar ; and, considering that
death and life are in the |io»ver of the toogov,
I am unwilling to reply, where life b at stake;
but, as Mr. Goodere seems to lay some strHS
on the circumstance of his not lieing actually
in the cabbin, at the time his brother was aMir>
dered there, 1 beg, Sir, you will indol^ me aa
observation or two as to that single powl. Nsl
that 1 imagine the least doubt in law can remain
with Mr. Recorder, but being in the case of a
capital prosecution, I would waye no olgcdiai
«f'
06S]
Jiff the Murder of Sir John Goodirt.
[10C«
louwwered that hu the Irut dqwndinM oa
ItB taw ; and I •^r«e. Sir, ifaat in ardcf to |
viDff Hr. Goodrre witliin the (»nipHi uf tbe ;
*' ~' nent, U^ muit appear to hire been pre-
laaa abeltor, at the pcrpelraliM of Iba
ir. The law ia cxlrenicly drar ia tbii
a aa clear, thai if ae'
r#ral peraona are eiif^K^ in a detig^ of mur-
fetii)? aaother, aud one uf the pany atandt
gnOD the watcb, at ihe room or house-door,
■nilat the reat actoallj commit the murder, be
a, in the judgment of tbe lav, preaeut at tba
nunler, and ai miirh a pijncipal in it ai the
iMt: and the lai* is tbe aame, though he
■lood at a cMuiderable diatance from tbe place
where tbe mnnler was eommi'tnl, a* at ibr
Kor the lane'a end ; for it ia not oecanarj
liould be in amipictu. if near enougb at
baad Ifl cmboldcD hia accom|ilic«s in tiie mur-
der, through the bniiea of preaent asutlance,
sr aei-urit^- from llie peraoa upon tbe walcb.
iatl aoil IS exprraalf laid down, in lord cbief-
juatice Hale's Hintnryol'ihePleai of IheCrowD,
>i the chapter <ifPetit-treaaun; ivherehesays,
Ibai if a wife or aerrant conspire* with a
■tranger lo kill tbe hnsliand or mnater, and be
ia the aaiiie hoiisa with Ihetiranger whilst be
eanmila the munler, ibe wife or aerrant ia
gniltj of petit-treason, though ool in the same
raon where tbe mutiler was commiited. Tbe
NBedoctrioe iataid down in second Hawkina's
H. Cr. 313, (niAm aa a tifin^ author I cite,
Miy for the sake of the auihorinea be has been
■1 great pains in coDrctinff.) And tbe caae of
Im3 Dacre is full in point: Mjr lord Daere,
wilb Haoael and severaJ olbera, went by night
ista anollier's park, unlawfully to kilf deer;
Mj lord waited about the park-gale upon the
aatcb, whilst the rest weotaqnarler of amile
■la the park, where Iliey met and killed the
keeper; lord Dscre, lliough at ao great dia-
Uoee when the keeper waskilled, was adjudged
afriaeipal in tiie murder, and accordingly died
M il. Anil agreeable Id (hia, was likewise
■be case of Berry, (the porter of Someraet-
kase) who wa* coBcemed with Green, Hill
asd otben, in the murder of sir E. Godfrej' ;
Mae of them way-laid that worthy magis-
tnte, and baring inticed lym into tbe yard
hading to Somerset' house. Green, Hill and
atbcrs strangled hiui. Berry was one of their
|Ug, and whiln the other* were oommilling
tki border, stood at a great distance from
Ikoi on the watch, <nnon ibe stairs leading to
Ike npcer court of nnuieraet-houae: he was
lilted with Green and Hill, aa being present
aflbejury, in the c
w before you, i
MIy made out in proof, tbal tbe deemed wss
andsr one continuing arroeJ force, from Ibe
iostaot of Ilia being seized to that of bis death;
•ad that bis brother (the prisoner Mr Goodere)
pot and kept him under thai liirae. Then,
fSBtleinen, Air. Gooilere's displacing Bucha-
nan from tbe cnhbin-door, and placing himself
tina in bis Mch'I, with the drawn aironl io hia
hand ; Habony'a entering into, and beiiw let
oat of the eabbiii, whilst Mr. Goodere lept
guard at ihe door of it ; Mr. Goodere waring
bis sword at Macguinis, and bandingin Ih*
candle ; tbe dying outcries of his brother
(which could not but reach bis ears, though
not bis heart), and Other black ingredients ia
Ihi* dreadful case, are an undeniable proof
that Mr. Goodere was concerned with Manonr
and Whitens their accomplice in bia brotber'a
murder, and took hia slaud at the eabbin-door,
with DO other intent than to emboldan aud
aaaisl them in tbe perpetration of that cmel
act, and keep off others from coming to bia
brotber'a relief, orfrom disiurbinn them io the
fatal business Ihey were about. Under wbidi
circomUanoe he la guilty in the same degree
aa Mabony ; and in tbe eye of tbe law looked
upon to have been as mucb preaent at bis bro-
ther'n death (as an abetlw of llie murder), aa
if he had stood by the bed-side and held tbe
swoid over his bead, whilst Mabony waa
strangling him. 80 thai, gentlemen, I appre-
hend we haie made good the indictment
againat both the prisoncra, by clear and con*
vincing evidence ; and therefore doubt not hut
their guilt will suind recorded to future ages by
Ihe justice of your rerdicL
Mr. Skephard. Hr. Recorder, will you
nark that be hath taken notice of, tbe lord
bacra and bia parly came by nigbt unlawfully
to kill deer, and tberefbre tne Taw presnmed
Ihey all came with an intent to oppoae all that
aboifld hbder them in that design; and so
when one killed tbe keeper, it must be pre-
sumed the act of all, becanae puiaiwnt to that
intent But whether Ihe present caae ia dr-
cuiDslanced as that case, ought to be conai-
dered. 1 do admit that Mr. Goodeie was
down in Ihe cock-pit at the lime this fact waa
done, and be waa iiertainly obliged (as hath
been obseried) by the law of nature to take
care of hit brother. But if he bad no other
inteulion of carrying him on board the ahip,
than tokecureand tdiecare of him aaa person
whom he looked upon aa dianrdered in his
aensea, and with a view of reducing him lo
reason ; then surely Mr. Goodere's case ia
very different from the lord Dacre's. And
that Mr. Goodera did look upon his brother to
Kt. Rteorder. Kir. Shepban), you are going
off from the point of law to mailer of fact; I
prerent any persons coming, who might bave .
prevented the murder, or lo encourage tliose
within the cabbin ii -"^ ' ■*- —
about, ihey must Hn
dictroent; otherwise they muM acquit him,
tilr. Shenhard. If he was not there wfth that
inlenlion, be cannot be guilty; and in this case
no sucb intention appears.
Mc. Recorder. Qm iambim. ^ *»>&« ^
1067] 14 GEORGE II. Trial of Captain Goodere and M. Mahony, [lOOB
fact, which mast be left to the jory on the
whole evidence.
Grentlemen of the Jury; the priionera at
the bar, Matthew Bluhony aodSamuel Goodere,
ataod iudicted for the murder of sir John
Dineley Goodere. Aud the IndictmeDt changes
that Mahony stran^^^led him, and that the pri-
'■oner Goodere was pre«eDt, aidiuffand abettinif
him in the tact. They are both chargrifd as
principals in the murder. For, i(;entlemen, in
the eye of the law, the person who is pi-esent,
aiding^ and abetting, is as much a principal in
the murder, as the person who aciually com-
mits the fact. \V hetlier tlie prisoners, or either
of them, be guilty in manner charj^ in tlie
indictment, 3'oa are to determine upon the
evidence you have heard.
The evidence has been very longf; bnt I
will endeavour to lay the material parts of it
before you in such a light, as may best assist
you in your present enquiry.
'Tis out of all doubt, that sir John Dudey
Goodere was strangled on board the Ruby man
of war in King -road, in the night between
the 18th and 19th of January last. And
therefore what past at that time, which may
affect the prisoners, or either of them, as they
stand charged on this indictment, will deserve
your principal attention. But as the prose-
cutors have (very properly 1 think) gone pretty
far back in their evidence*, in order to shew by
what means sir John was got on board, it will
be necessary for yon to take that part of the
evidence likewise into consideration.
The first witness is Mr. Cbamberlayne, who
tells you, that about three weeks before the
murder happened, Mr. Goodere desired 'him
to use his gooti offices with Mr. Jarrit Smith,
a friend of sir John's, in order to bring about
a reconciliiitiou bet»ecn sir John and him.
Mr. Smith tolls you, that 3Ir. Chamber-
layne did apply to him for that purpose ; and
a/terwards brought Mr. Goodere to his house
on the same errand : and that Mr. Goodere
then repeated the same request "t^Ir. Cbamber-
layne had before made in his behalf. He says,
he proposed the matter to sir John, who with
some difficulty consv^nted to give Mr. Goodere a
meeting ; which was fixed for Tuesday the
13th of January, at Mr. Smith'sR house in the
College- Green, of which Mr. Goodere had
timely notice. That on Tuesday the IStli, sir
John rode up to his door, and having just
alighted and acquainted him that he could not
at that time stay ; but that the next time he
came to town, which would be the Satnnlay or
Sunday following, he would meet his brother ;
he mounted his horse, and went off, attended
by his servant, both armed with pistols. He
says, that on the same day he met with Mr.
Goodere, and acquainted him, that sir John
would be again at his house on Saturday or
Sunday ; and it was then agreed that Mr.
Goodere should have notice when sir John
came. He says, that on Sunday morning the
18th of January, sir John sent him word, that
he would be at his houie that day, at any
hour he should appoint ; and aecoijiiyhf
three in the atlemoon waf appointed. He
says, that the same momini; he gave Mr.
Go4»dere notice of the appointment. Hut ia
the afternoon sir John and Mr. Goodtre Mt
at his house, where mutual civilities fmmi
between them : that sir John aooo took hii
leave, the witness and Mr. Goodere waitngti
him to the door. He says, that he pressed Mr.
Goodere to stay longer ; and said to hiu, I
hope I have done great things. To which Mr.
Goodere replied with tome emotion. By M
this will not do; aud immediately followciar
John down the hill. He say a, that afandiif
at his door be observed a company of sMkn
gathering about sir John, aud heard Mr.
Goodere say to them, la ke ready, or is it
ready ? (he is not, I believe, positiTe, «ta
were the words) : to which some of tbeniln
answered, Yes, Sir. Whereupon the wbdi
company went hastily off, some towards th
Butto, others towards the Lower Grean ; ani
Mr. Goo«lere followed them by the Batta. Mr.
Smith had no suspicion at that time, that Ae
saitora were offering violence to air John, ani
so made no fartlier enqnirj^ into the miiSm\
till a soldier, who is likewise prodaocd ss ■
witness, told him what happened at the bii|Bi
The next witness thev produced is ManM
Hobbs, who, it seems, keepo the White-Hat
alehouse at the foot of the College- gicen : lad,
gentlemen, you will observ% that horn Ihi
front windows of that house, one may have a
view of M r. Smith's. And he tells you that ss
3Ionday the l^th of January last, lite prisoosit
at the Mr came to his house ; that Mr. Goodot
desired to see an upper room, over the parloar,
fronting the street ; aud having seen it, ssid,
he would come the next morning and driak
coffee in that room. Accordingly, the aot
morning he came (early for that time of Ike
J^ear) before the windows' were opened, or fiifi
ighted ; bis dress so different from what lis
wore the day before, that the witness did aotal
first recollect him. But, it seems, he diaofc^
his clothes afler he came thither. He seeiod
willing to drink his coffee in the parlour ; bst
lieiog desired to walk up stairs, be went isis
the room he had pitched upon the day befnf.
Soon aften/iards the prisoner Mahony, will
three other persons, came in ; and atW tbcSi
five or six more. These people, gentleoMB,
were not altogether in one room ; hot they
were all entertained at Mr. Goodere*s expeace.
The witness tells you, tliat Mr. Goodere onkr-
ed they should be entertained ; and at guiaf
away paid the whole reckoning. He mts,
that while the company was at bis Imuse, Mr.
Goodere above stairs, and others below, ar
John Dineley Goodere rode by from Mr.
Smith's attended by his servant ; and that as
they passed by, Mr. Goodere called out to Ihi
people below. Look well at him, but don't toaeh
liim. He says further, that 6n Sunday Iht
18th of January, Mahony came to bis houatk.
the morning, and desired him that if be mm
the gentlemaa in the Uack cap (by which da>
j^ Ihe Miirdtr of Sir John Goodert.
A. D. 1741.
criplion il apiMBr* sir John «ai meaiK) go tu-
rkftla iba Urewu, h« wniild wntA a pori»r to
iMB a(a puUic-houtt: in Marsh-BtTMl: tlial in
h» Bftefnoon MahoDV cnine Bgnin, with n gn-M
■Wiy other (teople, ill ■pfieiring' by (heir dmi
B be Mih>rs. And iliit as llit decvABcil ivalk**!
f Itw IniitM-, (l>cy all ru»<ivil mil aud went nit.
M «M, 1 lliiiik, no tartlier in l)ia eTiilence;
pr M teem* to be too much coonernal Ibr bii
■ekening and hi* tankard, to iDtod uny ibing
bMBUMd allvTwards.
' The ncxl ft idraceia Thomas Willisina, who
MiMKt U> ibe Kiiby. He wya, Ihal on Sun-
lay tne ISili be Lrought up the barue from
Klltg|--road ; nnJ was enlered by Mr. Good«re
■ leave two bBnils obcMrd Ihe ^r^e, aad take
Ighl of Ilia crew to (be Whllr-IJart aleliuiise
• Um Collefe-gmn, «nil lli«re wait for him ;
bm md be, I bare ■ gentleman lo ko od board
g*. He accordingly went to the While-Hart
•iA fai* men, and ther« found Alabony and
hmrtx fi»c people belonziue to ibe Vernon
■{raH«r. lie MyH, he had not been long
mtn, y>*frtt lliv company niibed mil nf iloors;
ri whicli be followed, ond found th^y had
riolent hnnds on the d«ceiiscit, and were
mrryiti^ biin on boar^l Ibe barge ; giving out,
feat he bad murdered a pereun on boanl ihe
A^,aBd Ibal (hey were carryJTig him ibilher
taarifr, a* tbey pretended, lo bring him lo
jdatKe, He lells yon, that the prisoner Ma-
May WW TFry acihe in thii outrage ■, and that
be BvilDiier Gundere v/as present, seeing and
iMBriBgall lliatpnned. Heliheiritegivesyou
RiMCMinl of Ihe conTeriati<in that piused be-
tnan ur John nnd Ihe iirlEoner Goodere, afWr
■■y were in Ihe burge ; and, amons other
Wm tdia you, that upon the Atctawm't ^ay-
1|(, lou aro carrying me on board (o mutdi'r
M^the prifonerGoodereatiswered, Nu, I don't
tand 19 do go, bnt I would bavt> von moke
Cpeane with God. Thia witnna sneaks
to wbtl piiMed nlier they earns o[i board
lk>Ai|i; for, uiys he, I IiaJ been employed
<Kiy. and went lo beil early. Bnt he tell*
BUftal In the nl(;l>l he lieard a very un-
B^bbn on board ; and ttiatabouttivo m tbe
^^^■t, be aiwthe prixunerGooderegodown
^^Hn-leailiDg to the purser's caltiln.— You
^^BpMrd, geoilemen, from Ibe wiinessea,
BPt^ ■h*n mentioo preaentiy, ihat ihc mur-
Tfcaai committetl in inia very cabhln.
Thitonatcauin then called streml nitnetaei,
ftBocf THrrt, Tliomai Cliarmbnry, Mr*.
Jhrby, and Wilbnm Dupree ; iihoall apeak
kibe manner of carrying air John fmm the
Cafcgu green lo the place where ibe barge
lly.
Ilieae wilnrnei agree in general, thai be
vutmird nith great rndeneta by the com-
|M> in <i1j<».r'l>iiudahe wu. Bill, ati Ihc nii'
mmi Goorirri' julmiln, Ibatbe did lake hia bro-
il \ and, as Habony endiVToura to
^ ■ ■'-■■ inil, by alleging that he
I neednntbp very parii-
fclbe circumalancet allending
rioA^
may be proper for you lo obaerrr, that Ihe pre-
tence eiven out lohtind ihe people whoeoquh'eil
the meaning of Ihia outrage, wa*, Ihwl the
gentleman had committed a inunler on bnartf
tbe Ruby. And lhal when sir Jrhu wasoD
board ihe barge, and calling out for help to the
ueaple on share, (ellinir them bis name, nntf
aesr^oe ibem lo let hia IVieiid Mr. Jaml Sfflith
knaw (tiiBl hud happened lo blm ; Ihe prisoner
fioodere oi that tmtani ttopi his mouih. Thia
rcumstance is proved fay three of these wlt-
I'he neKl ael of wllnnses who hate heen
called, aie persons belonging lo Ibe Ruby.
And from I hem you faaie an account of what
CBBscd from ibe lime sir John was brought on
rard to the time ul Ihe murder.
The first is Theodore Court, the mnsler oT
the Kuby ; aud he lelh you, that about sftcd
in the evening sir John was brought on board,
and iinme<lialely by Mr. Gocdere's order car-
ried down into that part of the shin which ia
called the cockpit, and secured in Ibe purser's
cabbin, and a cenlitiel set on him. He lella
you further, that Mr. Goodere, as soon as he
came on board, said to him and ihe other com-
pany present, I bare brouglit a madman on
board. And, gentlemen, you will observe, ibat
the ship's crew were made to cut eriain un opU
nion, IbatKirJobn wasmad ; saysMr. Ooodere,
Don't mind what he says, be is mad. This, all
Ihe witnesses agree in. And you may remem-
ber loo, that when tbe poor gentleman was
dragged and hurried along lowarils the barge,
ibi>n he bad murdered a man ou hoard the
Ruby, Now he is bronchi ahoanl, where that
pretence cannot serve, he is n madman, and
miisl be confined. This witness was present
the next morning when Ihe parser's cabfiin was
br^ike open, and sir John wan found there mur.
dered : opou which, he says, Mr. Omdero was
made n prisoner. But be tells you, that be-
for* this, Mr. Goodere expressed a great incti-
nalTOn tonillbnt very morning; and upon Ilia
representing to him the danger of atlempting
the Bristol chaonel without a pilot, he nnawer-
H, If 1 can but get as Itiw u the Holmes t
This witness was aslied a question by Mr.
Gnodcre, touching tbe place vtbera Ihe Kuby
was moored, a1 ihe time tbe fuel in qiieglioii
wu commitled ; and he saya, that slie Ihea
lay in King Road, and hnn detcribed her se-
veral bearings in Fort's-head point, Ibe Denny,
andihe Hole's mouth. But, gentlemen, it will
uol be material in Ihe present case, in what part
of King Road the ship iben lay, if yuu are sa-
Itsfied from the evidence you have beard, lhal
King Road is in the county of this cily, be.
cause it is admitted by (he pnaoner, nnd ludeed
it is too plain to lie denied, ibai tbe ship was
Ibi^n in King Road.
The D»I nilnesi is Duncan Iluchanan, wlin
was one of the company at Ihe While Hart
ale- house, on Tuesday ibe I3tb ; and he con-
Drrns what Ilobbs told you, that when sir John
and bia terTBOl rode by, ibe -priiOQet Qooden
1071] 14 GEORGE II. Trial of Captain Goodere and M. Mahony, [1073
cdled to Mahony and the company at tlie White
Hart, and bid tbem mind him w ell, but not to
touch him. He aaya too, that Mr. Goodere at
the same time ordered some of the company to
follow sir John. He speaks much to the same
purpose as the last witness, touching the brinjif-
ing sir John aboard, and carrying him into the
purser's cabbiu ; and adds, that two bolts were
put ou the outside of the cabbin door by Mr.
Goodere's orders. He tells voo, that he was
the centinel placed at the cabbin door by Mr.
Goodere, who, you are to take notice, had then
the command of the ship ; and says, that about
twel?e at night he was sent for mto the cap-
tain's cabbin, where he found both the prisoners
at the bar together. That Mr. Goodere en-
quired of him, whether his brother made any
noise P and said, 1 believe he is wet in his feet,
I'll carry him a pair of clean stockings. That
between one and two the prisoner Goodere
came down to the eock-pit, and listened some
time at the cabbin door, where sir John was;
Imd soon afterwards took the sword from him,
and ordered him up to the deck; and stood
himself as centinel at the door. He says, that
being on deck, he saw the prisoner Mahony go
down the ladder towards the purser's cabbin,
and is positive he went into the cabbin; the
prisoner Goodere standing at the same time
centinel at the door. He tells you that a short
time after this he heard a great noise and strug-
gling in the cabbin, a person crying Murder,
like one going into a fit : that, I think, was his
expression. This noise, he judij^es, continued
four or five minutes ; and is positive that the
prisoner Goodere stood at the door all that time,
with the sword in his hand. He says, that
after the noise in the cabbin ceased, he saw the
{irisoiier Goodere hand a candle into the cab-
HU ; and that he, seeing Mr. Goodere had no
light with him, lighted a candle at the lanthom
Upon deck, and was going to carry it down ;
upon which he says Sir. Goodere waved the
sword towards him, saying. Keep back, stay
where you are. He says, that soon afterwards
the prisoner Goodere called for a light, deliver-
ed back the sword to him, locked the cabbin
door, and put the key in his pocket ; and said,
If my brother makes any more noise, let ma
know of it.
The next witness is Daniel Weller, the car-
penter of the Ruby : he agrees in the main
with the two former witnesses, touching the
bringing sir John aboard, the carrying him
into the purser's cabbin, and putting the bolts
on the door ; and gives an account of the con-
Tersation he had with sir John in the cabbin
while the bolts were fastening on : from which
it seems natural to conjecture, that sir John
expected he should have foul play for his life.
He did not stay lou^ with him; for it seems
nobody was to visit the poor gentleman but
Mahony. He says, be broke open tlie cabbin
door next morning, and found sir John dead,
and observed some blood about bis mouth and
nose ; which, gentlemen, is what may be ex-
pected IB caae a penon ia atrtnglad,
1
The next witness is Edward Jones, lbs
cooper of the Ruby ; and be telU you, that ta
the Thursday before the fact in question wu
committed, Mr. Goodere ordered the pararr*!
cabbin to be cleared out ; tur, said he, I iball
bring a gentleman aboard. He says, that sosa
~,Mr.G<
after sir John was brought aboard,
came down to the purser's cabbin, and oflerH
him a dram of rum, and alao persuaded bin Is
make use of some to chafe his leg, which it
seems had received some hurt that day. He
says, that Mr. Goodere, speaking of air Joka
to the people present, said, Dou't mind wbil
he says, he'll oe well enough again. He tdb
you, that about eight o'clwdc he went to btd is
the slop-room, which it seems, is |iarted fn*
the purser's cabbin by a thin deal partiiioSi
That before he went to sleep, he heard whn
passed in the cabbin, particularly the disooum
between sir John and the prisoner Mabaaf,
which 1 need not repeat to you. And saji
likewise, that he heard sir John praying .»
God to deliver him out of his present disho^
and express himself as a man aenuble of hii
present danger. He tells you, that bctvca
two and three in the morning, his wife, whi
happened then to be aboard and in bed wilk
him, waked him, and that he then heardagmt
struggle in the cabbin, sir John crying out, M
a person in great confusion and distress, Hcft'i
twenty guineas, take it, take it, must 1 die'
He says, that in a little time all was qaiOi
from which he concluded the gentlemaa vsi
dispatched ; and then a light waa brouglit irie
the cabbin ; upon this he lays, he got up op«
his knees, and pee|)ed through a crevice in ite
partition, and saw the prisoner Mahony ud
one Charles White rifling the pockets uf iir
John, who was laid upon the bed, in the piMtorc
he has described to you, and motionless. He
says, at this time he saw a hand at sir Joho'i
throat, and heard a person say. It is done, and
well done; he cannot say who the person wu
whose hand was at sir John's throat, but b^
lieves it was not the hand of White, or MaboDji
for it was a white hand, and not like eiiber ef
theirs. He savs that he lay in fear of his owa
life (as in<leed 1 think he had great reasoo) till
about four in the morning, and then the mcs
belonging to the yawl being called up, be got
up too, and acquainted the lieutenant witli
wnat passed, and consulted with him and otbcn
of the officers about apprehending Mr. Goodere,
which was afteiwanls done in the manner joa
have heard.
The next witness is Margaret Jones, wife of
the last witness. And she gives much the ssnc
account of the bring[ing sir John aboard, isd
Mr. Goodere's offering him rum, as her hoi*
band does. And says farther, that M r. GoodcM
talked of ordering sheets for sir John's bei
But, gentlemen, it does not appear to me thtt
any sheets were ordered, or indeed any softef
relreshment provided tor him, except a siogli
dram of rum, which he refused, having forbsn
the use of strong lijuora of all aorta for a cM*
ndcnblc timf . ThiawitncalikcwiitgivaS
107S]
Jiir the Murder of Sir John Gttodere.
A. D. 1741.
[107*
account of the conrersation between 3Iahony
and sir John, an<l tells you, that when Mahony
olTenicI to pull off sir John's stocking^, he said
to liiiii^ Pray don't strip nie till I am dead.
She savs, that a))OuL two in the morning^ she
heard Aahony desire sir John to compose him-
lelf to sleep ; and soon af'rerwards the li^ht
was put out, and bbe heard !\lahony say. You
must lie still, and not stir i'ur \ our lite ; and
immeiiiately she says there uus ^reat stmg-
glin^ in the cabbin, two pcTsons whispcrine,
and sir John crying Alurdcr, and kecking^ m
lus throat (as she expresses it,) so that bhe con-
daded they were strang^lini^ bini. At thib time,
ibe aays, somebody on the outside of tlie door
oflcred to come in ; upon which, those in the
cabbin said. Damme, yon nrgro, keep out.
She lays, the noise and struggliugs continued
Ibr a short time afterwards, and then all was
aoiet, and a liffht was bi-out^ht into the cabbin.
he then saw tlie prisoner Mahony, and Charles
White, the person her husband spoke of, rifling
■far John'ri pockets. The particular circuni-
fltances she mentions in this part of Iter evi-
dence t need not repeat. She says, that afler
Ab was o?er, they went out of the cabbin, and
the door was locked and bolted ; and she heard
•ae of the persons say, Which way shall 1 go,
where shall I run ? To which the other an-
swered, Follow me, my boy.
The next witness is James Dudgeon, who, it
eeems, is the surgeon's mate. And he tells
yoUi that when sir John was brought aboani,
■e was carried directly to the purser's cabbin,
and a centinel placed over him. Says Mr.
Qeodere to this witness. Doctor, 1 have brought
ft roadman on board, you must do the best you
ean with him ; pray go and feel his pulse now ;
er you may let it alone till to-morrow, tlie first
Sbt will be the worst with him. The doctor
1^, but was told by the cmtinel, that he
had orders to let nobody in hut Mahony ; how-
ever, he went in and fell sir John's pulse, and
fbond no disorder there but what might be oc-
casioned by the fatigue he had undergone that
afternoon. This witness, who, it seems, lodged
m a part of the cock-pit near the parser's cab-
hint says, that about two in the morning he
heard an unusual stir in the cock-pit, and over-
heard Mahony, who was in the purser's cabbin,
aaj, You must lie still, don't stir ; and inime-
dialdy there was a great bustle in the cabbin,
iir John crying. Murder, and saying, llcrc*s
twenty guineas, take it, take it. He says, that
by the noise he heard, and from other circum-
■ttaces he has mentioned, he then apprehcndfNl
that aomebody was strangling the geutleiuun.
Bcfbre the noise was quite over, he sayi; he
htturd the lock of the cabbin go ; upon which
•eroebody within cried, Damn ye, keep the
fast. The witness hearing this, called out
enquired whot was the cause of the noise;
he say a that the person who then stood at
Ae door answered, It is nothing at all. He
^001 my who the person was, but says he
M that the prisoner (Joodere was in the
fit while toe outcry wa« in the cabbin.
TCNUXVII.
Soon after the noise was orer, he says, a light
was called fori ^^^ catrieil into tlie cabbin ; and
in a little time he heard the tread of people
running out of the cabbin, and is sure he heard
the prisoner Mahony say. Which way shall 1
go ? To which answer was made. You nuiy go
by the shii^side. He aays, about this time a
person stept up the ladder from the cock- pit,
towards the deck, and he then heard the pri-
soner Goodere say. If my brother makes any
more noise, let me hear of it. These words,
gentlemen, if you believe Duncan Buchanan,
were spoken to him at the ton of the ladder.
It seems indeed probable, that 3lr. Goodere waa
solicitous to know whether sir John made any
noise or no,' after this time ; for this witnesa
tells you, that Mr. Goodere's servant, some
time afterwards, came to him to en(|uire whe-
ther he bad lately heard any noise m the cah^
bin ? Yes,, says the witness, 1 heard something
at the lock. This noise the witness supposes
was occasioned by a cat which had been locked
in the room. This witness inspected the body
the next morning, and tells you, that he found
great impressions about the neck, and the marks
of nails and Angers on it ; and upon the whole,
is of opinion that sir John died by strangling.
And, gentlemen, whether a rope was made use
of in the business, or whether it was done by
thrusting their fingers between the neck and,
cravat, and so straining the cravat close about
the neck, will not be material ; for though the
indictment charges tliat it was done with a rope,
yet if it ap|)ears on the evidence-, thai the de-
ceased was strangled by any means whatever,
such evitlence will be sufficient to maintain the
indictment.
Tiic next witness, and the last that has beea
examined, touching what was done on board
the ship, is Williaui Macguinis, the centinel at
the gun-room. And he telU you, that after
two in the morning, the prisoner Goodere went
down into the cock- pit; that noou afterwards
the prisoner Mahony push'd bv him ; he saya
he would have kept liim back, but Mahony
gave him ill language, and passed on, and
called to anotln r person to follow him. He
says that Duncan Buchanan was ordered up
to deck, an<l that he saw Mr. Goodere standing
at the purser's cahbin-door ivith a sword drawu
in his hand ; and remembers, that when be
offered to come near the ^abbin, Mr. Goodere
ordered him to keep back : this was at the time
the noise and outcry was in the cabbin. He
says further, he saw* Mahony go into the cabbin
beVore the noise was heard there; and that,
about three in tlie morning, he saw both the
prisoners at the bar go up the ladder fnmi the
cock- pit to the deck together.
The prosecutors then examined two wit*
nesses touchinir the gold watch which has been
produced. One of them, Sarah Culliford, says,
that the prisoner Mahony, the day he was ap-
prehended, delivered the watch to her, desiring
she would put it by for him ; that she, upon
hearing that Mahony was taken up fur the
murder, m a surprize, threw it iuto tlic vault,
3Z
1075] 14ke£OAo£lI. TfuiqfCiipMnGoddereMdM.Iimm^, [Nf75
The olber Witneto teflf yod, fhM be, by otctef
of Che magistrates, opened the ?aah, sna found
the watch there. Tnte wMch the prosecutors
would fix upon the prisoner Goodere, aud to
that end, it was shewn to Theodore Court, who
was examined before to other points. And he
says, be cannot be positive, but believes it to
be Mr. Goodere*s watch, having often seen it,
or such a one, hanging up iu his cabbin. The
prosecutors then produced a haadkercbief,
ivbich was taken out of Mahony's |)ocket the
night he was apprehended ; it appears to be a
little bloody, but I don*t see what use they
make of that circumstance.
The next piece of evidence the prosecutors
went to, was Mahony*s examination and con-
fession, which has been read to yon. This,
gentlemen, is Very prdper evidence, and ought
to have its weiqht with you, as far as it con-
cerns Mahony himself; out with regard to the
other prisoner Goodere, ^ou are to lay no dmui*
ner or stress u|)Od it, it is no evidence against
him.
The prosecutors tb6n proceeded to shew,
tiiat &.mg-road, where tne Ruby lay at the
time the fact was committed, is within the
county of Bristol. 1 thiuk indeed that some
evidence of that kind was proper to be given
for your satisfaction, and to that end they have
^led Mr. Wint and Mr. Lowden. two ancient
officers well known to you all. And they say,
jn general, that Kiug-rotd has always been
esteemed to be within thecoimty of Brirtol.
And they go farther and say, that they have
constantly, as occasion required, executed pro-
cess of all kinds in King-road; warrants from
the mayor and aldermen, process from the
mayor's and shcrifls* court, and warrants
grounded on writs from above, directed to the
sheriffs of Bristol. And, gentlemen, I mu^t
say, that though another sort of evidence might
have been given, touching the bounds of this
county by water, I know no evidence so proper
to prove the bounds of any county, as the ecu-
slant exercise of jurisdiction in the place In
Sn^^on, where that sort of evidence can be
ad.
I think, I have repeated to you the material
parts of the evidence which has been given
against the prisoners at the bar ; and you will
now consider what they have offered by way
of defence to this charge.
As for Mahony, I do not hear him sfty any
thing by way or proper defence, nor has he
CallM a single witness. He hopes, indeed, that
it will be taken by way of excuse, that he was
a poor pressed servant, and acted by command.
But, gentlemen, if you believe the evidence
which has been given against him, no com-
mand of any superior whatsoever (supposing
that to have been an ingredient in his cose) will
excuse him.
Mr. Goodere saytf, that his brother was a
lunatic, and he being his onhr brother, thought
it his duty to take care of him in that condi-
tion ; that in order thereto he had endeavoured
to get a lodgiflg in thhi dty, where he was td
be confined under the care of the ptisDher Hi*
bony, who was to have 5/. a month for his at-
tendance on him. That not bein^ able to get
a lodging for the purpose in the city, he took
him on ^ard the Ruby, in order to have hioi
taken proper care of there. H e denies that be
ever consented to the murder, or had any know-
ledge of it ; and insists on the great improba-
bility there is that he should be concerned in
the murder, since, he says, he knew that nr
John had cut off the entail of the family-
estate, and had actually made his Will, sy
which he hati devised the estate to another
branch of the family. 8o that, sajrs be, n
John dying while this Will stands, I have no
chance Tor the estate : whereas, as long as be
lived, my chance as heir at law contained ; ftr
he might have changed his mind, and ahcicd
or destroyed his Will.
The first witness he called was Mrs. Gethinii
who, I suppose, lets lodgings in the city ; asi
she says, tnat Mr. Goodere ne^er made a se-
cret ot his design, of confining his brother u a
lunatic ; and that about three weeks before tUi
matter happened, be spoke to her for a gsmt
in her house for that purpose ; but she reromh
hers no discourse the prisoner had with her
about Mahony.
Mr. Goodere then called two witnesses ii
relation to something which was opened againtf
him, (but not directly proved by any of the wit-
nesses called by the prosecutors) touching hii
sending Mahony and White away in the yawl
the momiuir the fact was committed.
They were Mr. Marsh and Mr. Dagg.
Mr. Marsh sdys, that on the Sunday io tU
afleinoon, after sir John was brought aboard,
he was ordered by Mr. Goodere to co up in tbc
yaw] early the next inoruing,to fetch letters from
the post-office ; aud l:e tells you that as he wu
setting out on Monday morning, he was iuflbrnh
ed by some of the ship's compauy , that Malioof
and White were to go with him. Upon whicn
he went to the captain to have his orders; for,
said he, I never take any body ashore withoot
leave. And he tells you, that Mr. Goodere did
order him to take White and Mahony up in tbi
yawl. He says, that he had no' orders to land
them at any particular place ; and that tber
were put ashore at the Giub, th6 usual place n
landing, about six in the rooming.
Mr. Dagg tells you, that Mahony hid
charged onel^lervin in his custody in an actios
for wages; that the Wednesday or Thursdiy
before this matter hap[>ened, he waited on Mr.
Goodere from Mervin, in order to accommo-
date matters with Mahony : And that Mr.
Goodere appointed to meet 3Iervin on that af-
fair the Monday following. He cannot say,
that Mahony was to meet on that day (thoop
indeed he says he did tell a gentleman so), m
knows not of any business White had thil
day in Bristol.
Mr. Goodere next called three witnesKSl^
the point of sir John's lunacy. The two fir t
have lived with him as servants, and they give
you divers mslances of an eactrmTagint vSU^
t&e Muiilerq/Sir Joliu Goodere.
A.D.
GtHinUbla liBhaTiaur in him ; I'roiu whicli liijey you
cancluilt that be mitit bare been a ;nHdiiiiu. ' ' '
Tbe otbcr wUoeH ny*, thnt be kaeyr air Juhn
for Mne jt-in; ami in genrral tiy», ilut
fnwibiiiaciionsbeiook bim to be niad,
He then cftlleil xcrcrnl witiisssei. KeiLlbraen
qT wortb, wtiu have knoun hiin many yean;
sod tbcy all apce in Kiring l>ini a very gooil
disncter, s> to his former lite anil couv^rau-
tJon : Viil iinrticularly R;iy, Ihat tb^y alwayt
took biro ii> be a gaud- noiu red, well behaved
■dm, and one thai merited tbe late ami nieein
cf faia iieigltlioura. One of Ibeae wilnt^sseti,
tb. Farcffil, say", ihal he ua« couslaut at
•blircb on Sundays twice a day, Eeneiallj' at-
ten^d Ibc chnrcfi-Hrviee, BUiTselilum misaeil
•Ueniling al Uie sac^ineul.
Auotber of these wiluessea, DIr AshReld,
blTing given the firisoner a good characler,
waa uked iDuchioK tir John, |tailicutarly nhh
regard in hia euniiy ; and he seemi snrprised
ttt bear sir John represenled as a mad-man;
■mI tella y«u, Ihat he always liiiik him tn be a
HMD of good iinderKtanding : and goea so far aa
to oajr, that he touk bim to he ihc man of the
^■t tenic in the family, lie wo* uked,
MKbin^ tlie {irisoner'a having been infnruied
«f Ibc cnntenU of hit brother's will ; and he
IdlffQiij that tbe priMDer waa jnfonneilnf the
Btuport of the will ; but adds, that tbe prisoner
dedwed that he did not value the will; And
■IJM, ibat theie had been a lung miaunder-
MandiDg hem een the brothers.
Mr. Gouilete called a witness (Mr. Walkins)
tepmrethalhe wasinfarmed of thcconieiiUof
wJcdin't will. And be lellsyDii, that about
mtt K year or three quarters of a year ago, he
Cd iaiarm Mr. Goodere, that sir John had
■wrfa hi* will, and bad given his estate tn the
FfoU; who, it seems, are nephewsto sir John
19^ the pnaoner. But be tells you. that tha
inwnerthea said, he Ihunuht sir John lud no
fB>er (o make a wilt. He aayt, that in diS'
flOO*wabnui the will, hei|iokeit to the prisoner
■a hi* Opinion, that if mailers could be recnn-
" il blwecn air John and him, Uial will would
^fUdlODg: Fur, gentlemen, he likewise
^ifcUlbere has been* long misuiideraiand-
em tbe brothers. This wilness waa
lalud, touching sir John'a lunacy, and
■urpriaed tu bear thai his sanity is
nuon ; and gives bim an ad van la-
icter in other respects too.
t, gentlemen, is the substance of iheevi-
" '. has Iwen given on the one side and
And though ibe evidence has been
fen lon^. and, as yuu observe, chiefly pointed
M we pruoner Goodere ; yet with regard to
*Mr jireacni eni|uiry, the metier aCler all n ill
H^B ft luiTOW oompas*. Yuu observe, gen-
Hbi, tlw tudicliuenl chargea thai he was
^^■M) ^ng and abeiiiug the murder ; and
^^■nni however inttiumenial yaa may sup>
fwa bim lo have been in procuring the death
tT ail Jc'hn, by tarrying hini on Lourd, and
liaatiag hini ihnw in the manner y«u have
17*1.
prMent,
in* 1
[i«»
beliefc IbM he was prraent, aiding W|l
g' at ihe murder, he will not be guilt j
00 ^^m indictmirnl- Dut, gentlemen, you
runst not be deceived by tbe mere kound of
VW's- 't is not necessary, in order lo render
a peraon gudty aa a principal in murder or
oihei' felony, that he akoulij be ii
very spot nbere the fact is
rommilted, or even insight or hearing of it : If
(le he engaged in llie design, and poili bimadf
al the lime of cxeciuion in 9 proper aUtiua to
give assintance, if need he, or (o preventasur-
luhe, whereby the persoDp scUiaily cvwinitling
Ihe facl are encouraged in ihe periietialioo ft
it, he is in the eye ••( (he Uw, present, aiding
and abetting, and eqiinlly a principal in the
fact with iLose who Aciually commit it- Au
instance or tno may make Lhi* rule better un-
derslDoJ. If several persopfi agree to commit
a murder on lhehighwny,Qrin the open iieldB,
and one party of ib?m 1 ' ' ' '
fact commilled ; the olbei
to their several
underUl(«a 1
ihemselvea
and stand upon ibe
iurpriHe : they are all
equally guilty, and in the eye of the law prf -
seal at the tact. So, if a number of peupje
Bjjfree to Commit a murder, and to thai end
break into a house, and ihen dls|>erse Ibem-
eelves into several rooms ; or, if any of ilie
company stand without, and keep the dnor
while the murder is commitled (vilbin, they are
all equally guilty, and in the eyo of tbe law
present. Nay, Ibough the original intention
might be barely to comm'ita rubbery, yet, if in
prosecution of thai design a murder is corn-
milled, the whole company, ibose who siowl
upon the watcn,aawellBathuiie whooomtnilted
the tact, are all equally guilty, and principals
in ibe oiunjer. And therefore, gentlemen, if
upon the evidence which haa been given, you
believe thai Ihe prisoner Goodere did stand pt
(he door of Ihe mirser'scahbin while the murder
waa cofumitied, in order to encourage those
wilhia in the perpetration of the fact, or to pre-
vent any assisiauce which might have come,
you must tiud him guilty. And, gentlemen, I
must obaerre lo you, that it is prated by fi»tt
wiluesses, thai he was in the cock-pit nhih; ibe
cry of muider waa beard in the oabbin. Two
(if ihese wimesaes are jiositive thai he Blood at
the cobbin- door at that lime witli adruwn awoid
in hit handi ami lhal while he was there
posted, he ordered them to keep hack. And one
oflbesame wilncaie* is tikewiw positive, that
Eoon alter the cry of murder ceated, Ur.
Gooilere lumded a candle into tbecalibia.
Air. Goodere indeinl baa called neveraj wil-
neasei, who have given hiui an advanlageoga
character ; but, gcnllemeo, I lliink il my duly
to tell you, that though character ought to
Iiave it* weight when matten ore in ibenisclics
doubtful, or where the cbnrge is supported by
witnesses of ikubtful credit ; yet in clear cases,
and when the credit of the u iinvsses is not isi-
ponched, I think diaraclvr aious unghl to
weigh very hllle with you. And upon the
irWh if J«H iMtilut awVitatwa l» ti/»kmf.
1079]
14 GEORGE II.
Tritd of Charles While,
[iOSO
you must find him guilty ; if not, you must ac-
quit him.
As to Mahony, I think you can have no dif-
ficully if you belieye the evidence of Jones and
his wife ; and lay any stress on his own con-
fession ; and indeed lie now rather endeavours
to excuse than denies the fact.
Tlien the Jury withdrew, to consider of their
Terdict ; and after a short space, returned again.
C7. of Arr.- Gentlemen, answer to your
names. Christopher Bromadge.
Christopher Bromadge, Here. [And so of
the rest.]
' CI. ofArr, Gentlemen, arc you all agreed of
your verdict ?^-Jury. Yes.
CI. of Arr, Who shall say for you ?
Jury, Thei foreman.
CL of Arr, Matthew Mahony, hold up thy
hand. You of the jury, look upon the pn-
aoner: how say you, is Matthew Mahony
Guilty of the felony and murder, whereof be
stands indicted, or Not Guilty ? — Jury, Guilty.
C7. of Arr. What goods or chattels, lands or
tenements had he at the time of the said felony
and murder committed, or at any time since,
to your knowledge ? — Jury, None.
CL 9f Arr. S.inuul fSoodere, hold up thv
hnnd. You of the jury, ioi»k upon the prf-
soner: how say you,* is Samael Gtmlerc
Guilty of the felony and murder, whereof he
stands indictee), or Not Guilty ? — Jury, Guilty,
CI. of Arr. \\\\vii goods or cbattek, &c. (u
before.) — Jury. None.
CI. of Arr. Hearken to your verdict, as the
Court hath recf>rded it. You xay that Matthew
Mahony is Guilty of the felony and raurdrr,
whereof he stands indicted : you say that Sa-
muel Goodcrc is Guilty of the felony and naor-
der, whereof he stands indicted ; and that they
nor either of them had any goods or cbattrii,
lands or tenements, at the time of the nid fe-
lony and murder committed, or at any tiow
since, to your knowledge ; and no yoo say all.
CI. of Arr. Keeper, take Matthew MaWNiy
and Samuel Goodere the prisoners, from tM
bar, and look to them ; they stand conrictedif
wilful murder.
Then the Court adjourned to the lame plact
the next morning eight o'clock.
With respect to ]\Ir. Recordar^a obscm*
tions (pp. 1055, 1O50) upon Mahony'k Coa-
fessioD, see vol. 1(5, p. 70.
501. The Trial of Charles White, for the Murder of Sir John
Dineley Goodere : 14 George II. a. d, 1741.
On Friday, the ^7th of March, 1711, Charles
White was?" lirou<>^ht to the bar of the Court, to
be arrnin^iied for the ninnler of sir John Dineley
Goodere, upon an indictment found by the
flfrand jury for tlie city and county of Bristol on
the day preceding^ ; and the Court proceeded
thus:
CUrk of Arraigns. (Uiarles W" bite, hold up
your hand. (Which he did.) You stand in-
dicted hy the name of Charles White, late nf
the parish of 8t. Stephen, in the city of Hristol
and county of the same city, labourer, for tlmi
you and one Matthew Mahony, late of tht-
aamc parish, city and county, labourer, Lot
having the fear of God, &c. on tl^e iQtIi day of
January, in the 14th year, ^c. in and upon one I
air John Dineley Gomlcre, in t!ie peace of God,
Aec. then and there bcini^, felonio:>Kly, volun-
tarily, and of your malice arorethoiiirht, did
make an assault ; and that the said Muttiu'w
Mahonv, a certain cord of the value, Sec. about
the neck of the said sir John then and there fe-
loniously, voluntarily, and of his n)a1iL'e afure-
thou{rbi, did put and fasten : and that the said
Alatthew l^luliony with the cord aturtsaid, by
liim so about the* neck f>f the said sir John piit
and fastened, then and there, him the said sir
John feloniously, &c. did choke and stranj^Ie ;
of whiol) said chokhi^ and 8tran((lh^pr of him
the said liir John by the said Matthew Mahony,
in ananner and form albresaid done and perpe-
i|ntBd|.ht Um nid air^oba then andtlMw in-
stantly died. And that you the said Cbaries
White, then and there telonioush', &c. vas
present, aidinp;, abetting^, comiorlin;^ and vaio-
tainin^ the said Matthew Mahony in rotnocr
and form aforesaid, feloniously, &c. the said sir
John to kill and murder ; and so that you the
said Charles White, in manner and fbrmafore-
feiaid, the said sir John then and there felo-
nioiisly, &c. did kill and murder, a^insK the
peace, ^c.
How say V thou, Ciiarles White, art thoa
Guilty of tiic felony and murder, whereof tbou
standest indicted, or Not Guilty ?
IV/tilt.. Not Guilty.
(.'.'. of Arr, Culprit, how wilt thou be tried?
If7/;7t . hy God and my country.
(.7. of Arr, God send thee a geod deliver-
ance.
The Court procccde^l in hke manner a^ upoi
tile indictment agrainst Mr. Goodere and .1U*
bony ; and the uames of the jury sworn, weit
as fuilows :
John Xash,
Joseph Wilson,
Samuel Cave,
Wm. Abraham,
Wm. Jones,
liohert bloody,
Wm. Williams,
W^m. Aniidd,
John Willis,
Cornelius 8andfoH|
John Taylor,
Thomas Seed.
Then proclamation for information V0
made, anii the jtn-y charged with the \
4
for the Murder of Sir John Gooderc.
A.D. 17«.
rios2
ii)/i. May it please you, Mr. Re-
. yuu {rcntlcinrn of the jury, I am
tlie kiiii;^ag^inst the privoner at the
tands iu(Jirte<l for the niuriier of sir
■lev Gooilere ; uiu\ the indictment
\i one Matthew Maliony (who has
Jer^^one the justice of his country)
lie deceased, and that the prisoner at
{ present, aidiiij; and abetting liim in
ation uf that horrid fact; and which
ill be the same in consideration of
he prisoner had with hia own bands
he deceased, and actually drawn tlie
vhich put a period to his life. Gen-
is with an achinfi^ heart 1 dischar^fe
2holy task afrainst the prisoner, but
istice must be administered as well
d the great safety of the innocent is
ishment of the goiltv : and of this
T may be assured, tliat as be now
le bar for his life and death, and un-
counsel in matter of fact, I shall
ontinc myself to the letter of my io-
n ilhout any ag{;rar ation of facts or
COS, and endeavour so to discharge
11 this melancholy occasion, as that
ve nothing to fear but from guilt, or
t from innocence. And, gentlemen,
istr^etl, captain Samuel Goodere,
andcr of the Kuby man of war, and
die late unfortunate sir John Dineley
aving on Sunday the 18th of January
the assistance of Mahony and other
rcilily seized u|>onsir Juhn,andhur-
II l>oanl the Ruby (which then lay
ill King- road, witliin the body of
:y,) with a design of murdering sir
prisoner (a private mariner belong-
Ruby) was pitched upon by tiiecap-
ersou fit to be concerned with Ma-
te execution of that Imsc and bar-
ign. And accordingly, on Monday
lout one in the morning, the prisoner
up by Mahony to attend the captain
'in, which he did ; and the captain
g the prisoiier pretty plentifully with
osfd to him the murdering of his
conjunction with Mahony ; and no
I but done, gentleman : for this in-
retch the prisoner, inflnrnccd by ihe
ision of wirkeilness, and temptation
^n gain ; and not content with his
jes, nor considering that the wages
leath, ga« e at once into the monstrous
»r the sake of pliindrr. In u word,
, he readily followed Mahony into
*s cabbin, where sir John lay con-
d as that unhappy gentleman had
ime of first seizing him been treated
actor, so they exetnited him as such ;
ly seizf d him by the throat, and thtti
ihout his neck a rope, which they
ght with them for the purpose,
him in the presence and with the as-
f the prisoner ; and indeed iviihont
nee, sir John being strong and of an
I spirit, woald probably havt been
able to hare defended hinisdf against the at-
tack of Mahony. Gentlemen, no soontT had
they robbed sir iohn of his life, but they fell to
rifling him of his watch and money ; liiey di-
vided the spoil between them, and thon hftimes
in the morning the prisoner with his accom-
plice Mahony made off from the ship, nod look
refuge in this city ; a very unfit sanctuary ^or
ruffians and murderers, considering the v;ood
order and gorernment of the place, aiit! the
conbtant care of its worthy magistrates in tfie
due execution of the laws. But ju^ ice pur-
sued, and will, I doubt not, overtake him. lie
was apprehended, and made an early confession
of his guilt, and comes now to answer for his
detinquenc}'. Gentlemen, we bhall call iIig
I ship's cooper and his wife, who heard the
1 groans ana outcries of the decease<l, and were
spectators of what passed in the pursf r':^ rab-
bin immediately after this tragedy, and saw the
prittMier in the very act of riflinjr the doccaseif ,
almost at the instant of his death, ^\e shall
i also lay before you the prisoner's own confes-
' sion, on bis examination before the justices ;
; and then, geDtleiiien, we doubt not. but you
I will be of opinion, that by the lawsuf his conn-
• try he ought to die for his traiissfression, at
i some atonement for his own guilt, and an exam-
; pie of justice to others.
Edward Jones iworn.
Mr. Vernon. Edward Jones, tell Mr. Re-
corder and the jury what you know conceruiiig
the deatli of sir John Dineley Goodere.
Jones. On the IBtli of January last, at
[ night, I was in lied with my wife in the Mop-
I room, next the purser's cabbin down in the
cockpit in the Rub^' man of war, then l\ing at
! King- road, and sir John Dineley wSs then
j confined iu the purser's cabbin. 1 heard hhn
! pray to God to bo his comforter under his
I afflictions; he said, that he knew he uus to \ni
I murdered there; and he prayed that it might
come to light by one meansor aoother. lUit
I took no notice of him, because I thought
him a crazy man, as J heard the captain say
he was. After that, 1 i'ell asleep ; and, I l>e-
lieve about two or three of the clock my wife
wakc>d me, and said to me, Don't you hear
the noise that is made by the gentremau Y I
lielieve they are killing him. 1 then heard sir
John kick, and cry out. Here is 20 guii:e&5,
take it, take it ; don't niunler me ; must I
die ! must I die ! Oli mv life! and gave several
kecks \\ith his throat liken dying man, and
then he was still. I would have got out of
bed, hut my wife pen^naded me not, for fear I
should be killed too. It was durk ; but alight
was hnnde<l in to the purser's rabbin, and then
I got up upon my knees, and I could see a
light glimiiierinir thioujii the crack of the
Itoanis ; I saw Mahony \«ith a candle in his
hand, sir John was l\ing on his sifle. Tlie
prisimer <-harles Wliiic was (here, anl he
pulled sir John (o turn him about, and White
said he could not get lli^ ^^O^ ^>\^ -^^ ^v>^
1089]
H GEOHQE II.
Trial if Charlts IVAite,
[iObi
pock?^ ; and hie ivaMfid him up to come a^
the money, apcl uobuttoned his hreeohes. I
saw him get hold of the watch-chain ; and
White ga?e Mahony the watch ; and White
put hii hand in one of the gentleman's pockets,
and curbed that there was nothing but silfer ;
he put his hand in another pocket, and there
he found the fi;old ; he offered it to Mahon^r,
but Mahony Aimned him, and bid him keep it
till by-and-by. White pulled out a piece of
paper from one of sir John's pockets, and was
g:omg to read it; but Mahony said, Damn ye,
on't stay to read it now.
Mr. Vernon. Was sir John Goodere dead
in appearance when you saw them rifling his
pockets?
Jones, As they were turning him about, one
of his legs was crooked, which made me think
he was dead, and that tliey had killed him in
the dark. The next morning I saw sir John
dead, lying in the purser's cabbin, and I bc-
lie?e he was strangled.
Mr. Recorder, Prisoner, will you ask this
witness any questions?
White. Please you, my lord, I desire yon
will ask Mr. Jones, whether sir John was
lit ing or dead when he saw me in the cabbin
first?
Mr. Recorder. Mr. Jones, the prisoner asks
you whether sir John was living or dead when
you first saw him in the cabbin ?
Jone$, Sir John was dead when White turned
him about, for they killed him in the dark. I
beard two voices.
White, Whether Edward Jones saw any
body strangling sir John besidps Mahony ?
Blr. Recorder. The witness docs not say that
he saw any body 8lran<;ling sir John, that he
says was done in the dark : but, he says, he
heard two foices in the cabbin, and as soon as
thf liu^ht was brought in, he saw you rifling
air John's pockets.
' Mr. Vernon, Call Margaret Jones.
Margaret Jones sworn.
Mr. Vernon, Mrs. Jones, will you give Mr.
Recorder and the jury an account of what you
know in relation to the death of sir John
Dineley Goodere?
Mrs. Jones. Yes, Sir. On the 181 h of January
last, at night, I lay on board the Uuby man of
war with my husband, and in the purser's cab-
bin, next to where we were in bed, sir John was
under confinement; the captain said he was a
madman, and that he brought him there to
aavc him from a gaol. Aboiit ten o'clock Ma-
Jiony was left there with t^ir John ; sir John
desired him to go, but Mahony said he had
orders to stay there to take care of him. About
l*i oVluck in the night I went to sleep ; about
two o'clock I awaked, and heard the •Gentle-
man talk to Mahony, and Mahony persuaded
the <|[entleniau to go to sleep ; the gentleman
said ne copld not : they talked together a good
wrbil^. 1 heard ion)ebody say to the gentle-
man, You must lie atiU, and noiapcaka ward
for your life ; and then I beard a peat strag-
gling ; who it was', I don't know. The gen-
tleman cried out Murder! Help, for God's
sake ; and made several kecks in nis throat, u
though somebody was ati6iug him. I shook
my husband, and waked him. I beard two
people in the cabbin whispering; the gentle-
man cried out Murder ag^in, Help for God's
sake! He said, Here's 20 guineas in my
pockets, take it, take it ; Must I die ! Oh my
life ! And somebody in the out*aide offered la
go into the cabbin ; but one of them vithia
said. Keep out, you negro; and then a gicst
noise was made, as though the cabbin wooU
have been beat down ; and then a candle was
brou||;ht in. I got up and looked throngfa a
crevice : I saw a man, 1 believe it waa White,
pulled the gentleman upright. Mahony IumI
the capdlc in his hand. I observed the other
put his hand in the gentleman's pockets; oai
of them said, Damn ye, pull out ilia watdi: I
saw the person take nold of the watch string,
and pulled it out, and said to the other, Hf^
thee take it ; and then searched another pocki^
and said. Here's nothing but silver : bqt tbta
he searched another pocket, and aaid, flat it
is, and pulled out a purse. And aoon after
that I licard the door unbolttfd, and thca I
heard Mahony say, Where shall i run ? Aii
another said, Follow me, boy. And they wal
upon deck through the hfitch-hold.
Mr. Vernon, J)id yon know the Toict if
oither of the two pi;r$ons whom you bssid
speaking to one another ?
Mrs. Jones. Yes, J knew Charles White Is
be one of tbe men by his voice. 1 knew Ui
voice when he said to Mahony, Follow mc,
boy. I am certain the prisoner at the bar «u
in the cabbin; I observed his bulk, hutcouU
not look earnestly at him, being very much
shocked and surprized ; but uiy husband toU
me it was Charles White.
Mr. Recxtrder, White, will you ask this wit*
ness any questions?
White. Please you, my lord, to askb«r,
whether she can say that she ever heard fliy
voice in the cabbin ?
Mr. Recorder. Mrs. Jones, the prisonerub
you, if you heard bis voice in the cabbin?
Mrs. Vonci. I could not know his voice it
tlte cabbin, for he spoke low ; and wbeo •
person whispers, the voice is not so difus*
guishahle : but as soon as he spoke aloud, I *
knew it to be his voice.
Mr. Recorder. Did you see him is tkt
cabbin, 3Irs. Jones?
31 rs. Jones. My lord, I did not see his facfl*
but by his voice when he went out, I kaev
him to be the same man.
White. Please you, my lord, to ask bffi
whether she ever heard me say. Follow \sm%
boy, before?
Mr. Recorder. Mrs. Jones, you hear ilia
question, give an answer to it.
Mrs. Jones. I never heard him aay ao btlqj^;
but I knew his voice perfectly well, haHtf
bean aG^uaintad with htm f^r two jfUk
/»r Ihi MitrdtT Of Sir John Goodtre.
A. D. 1741.
Ir. Vetium. We must now <l«ire that ihe
(« Enminilion may be rend. Crj'er,
/.'Jaran Britten, (second clerk ig tbe
r
I Mr. Bridcn tworn.
\non. Mr. Briileo, Wlint pRi«r Ii
irillm. TheEnaminBiinnof tlieptisonerat
btr, toliFii before Mr. Mayor.
Ir. Vernon. Uiil you sre tlie prUouer titan
bWr. M» • ' - '
)Htt.
I ili<I.
u see Mr. Uayor sl^n
Ir. r«-n<.
•^BtiUen. ..-.
Ir. Vtrnon. U that his hacd ?
hitttn. \es.
tr. Fredcritk, counsel for tlie prisoner.
ttvldukMr. Brit
MbA} inuile I
Icn, Was III
__._ .. 31? For if it was uoi TO.
tifrilr. It Pii^lit Rol 10 be read.
Mttordtr. TliBlisaHTHiproperquesition,
the prifonrr liiil insuted, anil trnde it
twt hli ease, thai his cont^inn was ez-
»d b* thretilB, cr drawn from bim liy pro-
Mi; m ihM ruse, iudeed, it would have been
tfur us to enquire by what means the
Da was procured ; but as the inlauner
i(H nothing nl' thai bimi, I will not lufl'cr a
fioKi to be uisked ibe clerk, nbich carries
Its reHretinii on the magistral e Ixilcire whom
ItUimiiiaiion was lakeu. Let it be read.
ST^^rr. Reads.
January SO, 1741.
It tml county Dr> .
fifcl tf Biwti.1. J "*""'
lb £xA]it.H*TioN of Ckarixs WHrrE, a
•ailur belonging to the Ituby man of
«»(, now King in tbis port, born in
progbeda iu Ireland, aged about ibirty-
Hhi e«»minant voluntarily cotifewelh, and
Ik, That he liotb been a sailor <in board the
l| Ibip for aWiit >cveutein months tnKi nail :
U nmul one of the clock in the niglil of
iilliy latl. Ibe 18lb insUnt, he ittkiasleep '
ilunlmook 0
board the said ship, Hiid was
Mntlhew Mahnny, another
/ laid !>Iiip (and now in riis-
u. ihai Ibe captain (MrauinK
xiilv re, commander of the
>>>iveak with hitnin his^tib-
i^ly he went tn bim ; and
'I'lti, the capttiin asked him
ri gave bim a wide glnss uf
' li'iir or Rve more, nnd fiipn
M kill a Spaniard? Ai«ltMa
il bim, Thiit he ncTer did.
:i|>tain told biru, he had eol
, if he would tinderlake it ■
And the captnio tofA bim, it was tn iViike M
with liis brritber, whose name (a^ ibis cian
nani is infiiniied) wasiir Jobu Dineley Uooder
barl. who was in the purser's eabbinoo boM
tbe isiil ship : And (be noid Mutlhew MaboB
told this exaiiiiuam, that he cnuiil go with b*
to belp do it. Whereupon Ihe said capUd
weoi out of rbe cabbin Uni, Muhony folloirr
bim, 4nd ibisexaminanl went nexl ; and wb«
he caiite to tliu purser's cabbin door, where il
John Uineley wa<<, the uaplaiu was atandiiu
cenliiiel himself ul the dour, with a cutlai 3
bi> hand, and Mnhony had entered tbe CobUi
and this exaniinBnl entered likewia
Mahony was latking with the said
and had a piece of rope, called three- quai (era
an inch rope, in his hand, about six foo' '
length, and sir John was lying on the [fed ;
narticuiarly Mahony asked sir Johu how
head was, and ivbat he had got abont it } AlM
at last told hira, il did not signifv talking abn
il any longer, and then fell on Dim on tne 1 '
took fiold of hit tbroBi with his band {his at
bciDg" on) and so strangled him with hisstuC
aad allerWBi'ds put tbe said rope aboul his net
(whicli was prepared Ibr the purpose, with
noose in il, betbre it was brought out of ihe ci
tain's cabbin), and then Blahony hauled ihe r«
tight about his neck ; and upon tbis examinanl
asking him what he did that fur? lie said, F
fear he should not be dead enough. And tl
exarnin.int took a knife out of his pocket, a
cut it olT his neck, and threw it over-boi
During all which time the captain stood c<
lioel at the door as foresaid ; and as soon
this examinant had so cut the rope off, the cl
lain handed a candle to Mahony, who gave
to him, and Mebony took the Watch and n
ney out of sir John's pocket; andiben the cl
taiu a«hed them, bare ye done ? Meaning (I
thig exaniioant apprehended^ murdered the si*
air John. And then came m hioiselF, and tl
cxaminant went Ihrough the hold, and c
opon deck, where lie walked for about t
space of half a quarter of an hour, and the<
tain and Mabony went into the ca))t8in's i
bin together, and then tbis examinanl «
into thesteeridge, and Mahony called ibis i
into the eahlio, where the captain b
order to go to I '
e him five guii
this Maminant had receired of the said rapti
d himself ii
e Ibe captain gi
thii txnminanl saith. That Hihony shev
the capuiu the watch he bad taken out of
John's pockel, and the captain gave Mahdt|
his uwn watch, and kept sir Jof
and Mahony likewise nhi^wfd the Captain a
money he hud laien out of sir John's p( *"
who (lid tiim keep it ; and Mahdhy cavi
this «tanilnant, who put il ill His [idAet, :
he and Mahony thared the money on the fotij
castlr. and this e»anjinant had Iw* _
one. (a cAnsideraiion that Muhony bad ]
watch; and this exaniinant htliete^ f'
■htred aatn tbirt; fiuhit mneUt at]
H)87] 1 1 GEORGE IL
And further this oxaminant saith, That the
said captain told him and Mahony, that they
might p) any whcr«» Im* three weeks, aud he
would send tlierii llieir tickets. And lastly,
this examiaant saith, That het^reen four aud
five of the clock the same morning, the man of
war's yawl was going to this city, and he and
Mahony landed at the Gihb here.
CuARLEs White.
Mr. Recorder. Well, prisoner, what have
you to offer in your defeoce ?
White. Please you, my lord, T was in my
liammock between the hours of twelve aud
one, and this Mahony came to me and said,
Charles White, Charles White! 1 said, What
do you want? lie said. Turn out. I asked
him what he wante<l of^ne now? He said
again, Turn out, turn out. And with that I
turned out, and went upon deck to make water,
and while I was doing it, he told me that he
wanted me to go with him. 1 asked him where
be was going to bring me ? But he led ine
into the cabbin where the captain was. When
1 came in, the captain bid nic sit down. 1 beg-
(red him to excuse me from taking so great a
freedom as that in his company. But at last I
sat down, and I drank a glass of rum. Then
the captain askeil me, whether I had ever kill-
ed a Spaniard ? I told him. No, 1 never was
engaged with one to kill him. Drink about,
Mahony, said the captain. With that we drank
nboiit, and fuiished a bottle and a half in raw
drams. With that he said, Come along with me.
I asked him where he was t;oing? I went with
him, the captain lirst, and 3Iahony afler him ;
and they went below, and to what inti'iit J knew
not, being quite in licpior with drinking so
much rum. Said the captain to ine, when we
rarae down. Tarry here till J call you. .Soon
after Mahony came to me, and told me the
captain wants you. Then I went into the rab-
bin, and sat down in it, and Mahony and the
captain were talking together ; hut what they
did I know not, for 1 never laid a hand near the
gentleman.
Mr. Recorder, ^'ou say you were in the
purser's cabbin, and do you not know what
happened there?
White. I cannot tell, Sir, what past.
Mr. Recorder, if this defence be true, how
came you to be so unjust to yourself to make
the confession which has been read ?
White. Please you, my lord, I was in liquor,
and did not know what passed between them,
for I had not my senses about mo.
Mr. Recorder, Why, it is ch;irt;ed upon you
by the cooper, that you exainine<l sir John's
pockets, and took out his wntcli and money,
aud a piece of paper which Mahony persuaded
you to throw away, as of no consequence, or
else to put it into your pocket, and read it at
auother time.
White. Please you, my lord, I know nothing
of it ; I Irave several witnesses to my cha-
raeter.
Vlt, Reorder. Call your witnesses.
Trial of Ckarl^Wkiie^
[KKS
Michael Smith sfrorn.
Mr. Recorder. How long have yoa kosini
the prisoner?
Sniith. From a child. Sir ; we wcnttosehsol
together for eight years.
M r. Recorder. W hat do you know of bin ?
Sniith. Sir, I never heard to the contrary but
that he was an houest man, and bore a good
character.
Theodore Court sworn.
T. Court, T never knew an^ hann of dN
prisoner till this unhappy affair ; but I bsfe
oeen informed, that since he hath been nn^r
confmemcnt, be hath told several people whs
have gone to see him, that if he can get dnr
of this, he will kill my mate.
Edward Jones sworn.
Jonet. I have known the prisoner forthm
years, but never knew aiiy narm hy him ; I
was with him in the VN'est Indies, in the KiB|-
sale man of war, but till this misfurlnne ha^
l>ened, 1 never knew any harm by him.
Mr. Recorder. Are you sure theo, that JM
saw him in the cabbui rifling the dcecsied'k
pockets ?
Jones, Yes, my lord, I am sure ofthaL
Wiiliam Macguinii sworn.
. JilacguiniSt Please yon, my lord, 1 kncwtk
prisoner at the bar ever since be was an idut;
I weut to school with him, and never knew aov
harm that he did before; I have often bulk
eat and drank with him, and when he is sober,
he is as good and civil a man as need be.
Daniel Weliar, carpenter of the ship, sworn.
Wcllar. I have been about sixteen or leveo-
teen months with him, and he always bebat etl
himself well on board, and I never knew acj
harm of him before; but his voice is Juxcma
from all the meu in the ship.
31 r. Recorder. To what purpose, do yoo saj,
that his^voice is known Irom all the men in tLt
ship?
UtUar. Because they talk about his voice
oftentimes.
Mr. Vernon, If I apprehend him right, ^'^
he speaks this in couiirmaliou of Mrs. Jodo$'«
evidenc*c, who swore she kuew the prisoncr'i
voice, (ientlemcn, 1 was in hopes the pn*
soner would havestood to his former coot'esnuo,
instead of endeavouring to retract it, and hate
given glory to CJod by a public penitence asJ
sormw for the heinousness of his crime, iofteaJ
of putting Oft a shew of innocence against prM^
so apparent of his guilt. — Defence, I appre-
hend, he has made none ; he has called iadcc'
some witnesses to speak to liLs character ; so4
character, it must be admitted, is of weighti^
way of balancing the proofs, wlitre the fact' <
doubtful and uncertain ; hut when tbe cfi*
denee is strong and pregnant, and guilt stutl
the prisoner in the fhce, character weighs i'
a single grain iu the scale of justice. Usv^
UGoodere. A. D. 1711. [1090
of lie Weill into the fiurier's cabbiii, but mvs, that
ly ', beiti£; inucb jo liquor, he kooivB DOtliin^ ot
he . nhal passed there ; aoil deaies that he had any
lie ' c)oi:«rD in llie tnunl«r. He railed fonie wit-
ly . nestea lo his character ; nod I miisl obterre to
re - you, ifaal odg of hii wiloeases. DaiM VVellar,
.iJ says, thai the priaoner'a Toice is disliDguitbable
or I from the voices of nil llie men Id Ibe chip.
Tbis trill give soms weight lo Margaiet Jonei'i
:iidence, that she knew him by hia voice.
And, geotlemeD, upon the vhole, if you be-
laie the evideoce for tbe kin^, and give credit
to the prisoner's confetaion, you must find him
guiliy.
Then (he jury wiihdretr, to coasider uf
their verdict ; and afler a short space returned
again.
CI. of Arr. Genllemeo, aniwer to your
he names ; Jobu Nash.
JohnlHath. Here. [And iciortbereit.]
CI. of Arr. GentlemeD, are you all agreed of
your verdictP— Jury. Yes.
CLo/Arr. Whoahallsay for yoof
Jury. The Foreman.
CI. of Arr. Charles White, hold np th^
hand. Yon of the jury look upon the pri-
soner; Row say you f is Charles WhiteGuilly
of the felony and murder whereof he ilaods in*
diclecl, or Not Guilty 7— Jury. Guilty.
CI. of Arr. What eoodsor chattels, lands or
tenements, bad he al £e lime of the said felony
and murder committed, or at any lime since,
lo your knowledge? — Jury. None.
CI. of Arr, Hearken to your verdict, as the
Court liath recorded it : You say, that Charles
*Vhite is Guillj' of the telouy and luurder
tvhtreof he stands indicted, and that lie had no
goods or chattels, lands or tenements at tha
I lime of the said felony and murder coiomitled,
or at any lime since, lo your knowledge ; and so
you say all.
CI. of Arr. Keeper, Uke Charles White Ihe
prisouer from the bar, and look to bim ; he
stands convicted of wilful murder.
On Saturday the33lh of March the prisoners
were brought again lo the bur, in order to re-
ceive their sentence i and tbe Court proceeded
thus:
CI. of Arr. Cryer. open the Court.
Cryer. Oyca, Oyez, Oyez : all manner of
persons that have any more to do before tbe
King's mnjesiy'ajustic<>a of Oyer and Terminer,
I general gaul-deh«ery for this city and
mty, and were adjourned over to this time
and pCace, dr«w near, and give your atlendanc«.
Ch of ^rr. Mr. Recorder, will jrou plea
iirisonersa' -"■^-- " ' ■ ' '
tcorder.
CI. of Arr. Keeper, set MaUhew Mahony,
Snmuel Goodert, and Clisrles While to the bar ;
which was done.
Mr. Recorder. Ask them what ibey can say
lo hinder judgment.
CI. of Arr. HaUhew MaUony, hM u|i ihy
™.i ._ i,ftBi K-»**« ;_ .1- .'^ 1. .-!'-"« and
hand. Tboa ha»tbeea iadiciedut
1091] U GEORGE IL
munln', tbou hatr been thereupon aTTti^ed,
ifaou hut pleaded (iiereuDto not guilty, and for
ihy trial, thoii Last put thytelf upon God uit
ibji oouutry, wbicb counuy bath round thee
Ifoilly ; what hail thou to aay for tbjwlf, why
the Court abould not proceed to giTe judgment
of deatli upon thee, and Hwud execution ac-
eordiog to the law f
[He offered nothiog', but begged fot time to
prepare bimBelf.]
Cl.qfArr. Samuel Gondere, hold up Ihy
hand. Tbou hast lieen inilicied uf felony and
murder, ice. what bast tbou to lay ? Sm.
[He offered nothing, but lieggedaleo for time
to prepare himself.]
CI. rf Att. Charlet White, hold up thy
hand. Thou haal been indicted of fplooy and
murder, &c. what bast thou to say ? &c.
[He offered nothing, but declared he wai
drawn into it, and be^vd Tor tra Deportation for
life.]
CI. of Art. Cryer, make proclamation for
Crytr, Oyez ; Tbe king'* majesty'ajuaticn
straitJy charge and command all manner of
persona to keep Bileacc whilst Judgment ia
giving, upon pain of imprisonment.
Mr. Rtcordtr. Saranel Goodere, Matthew
Mahony, Charles White, and Jaue Williams,"
yon haro been all convicted, upon Tery full
evidence, of one of the greatest crimes human
nature ia capable of; deliberate siiil uilfiil
murder. A crime, ubich ii: all ages, and
through all nations, Imlh been had in the
highest delHtalion. For however mankind
have differed in other mailers, they have heeti
in one scniiment concerning this crime and the
demeritB of it; as if ihev IibJ been all wit-
nesses to the promulgation of the precept,
'■ Whnc-ver sheddelb man's blood, by man
shall bis blood be ihcd."
But this crin:ie, great as it is, i« copsble of se-
veral aggravationb, arising from the cireuin-
stanc«s which attend it.
To lay viuleut hands upon a person who
never gave bis murderer the least offence,
whom perhaps he never saw till tbc moment he
was marked out for execution ; and to do thin
for hire, shens a mind lost, I fear, to all the
iinprt-saioDS of humanity.
fiut what then is the case of one, who can
procure all this mischief, and involve others in
this )piilt; especially if the person In whom
the violence is olfered, isnear tohita by the ties
ofblood or friendship ?
It istnie, munleraoftbis kind are not very
frequenl ; and less so in this nation than in any
other. But in the case in wliich ttiree of you
are concerned, they all concur.
Triai of Oiarta While. [1098
A gentleman of distiocliM >■ innrdend by
pemos. who, in a maniter, were stcaartnio
nis face, and bit only brother aidiiq; and sbel-
ting the murder. 1 may (ay thus niDeb, be-
cause your country both upon full etidaMC
1 will carry these reflection! im ftHhrr; (
choose to leave that part to jonr own seriona
consideration,
I hope f need not penuad« yoo to Mplsf
the time you hate to live, in maUny yeur
peace with God : 1 hope, I say, that a WMesf
your own condition hath already put yoo bm
that work. And pray don't suffer yourMlvs
tobe diverted from it by the Iniiii in i ipiilalii«
of mercy from the crown. His ma.^y'sli^
positioD to mercy is great; but bis nw rf
justice, and his love to his people isstillgrcaler.
And because I would not mislead you, nor b*i«
you deceive yourselves, in a cose of this im-
portance, 1 think it my duly to deal fredy wilt
I do not see what room any of you haTC M
expect mercy.
You who have been the immediate aelni
in this affair, what hare you pleaded in nMga-
tioD of your erime? One aayi, be ia a fa«
pressed servant; and tha other, that he wa
drunk when the fact was cmnmitled. Neilbn
of those excuses can anil yon. You beihai-
dertook the murder for hire, rifled the geUOie-
man's pockets, and shared the plnnder beiwcci
you.
You hnd, perhaps, no design upon the gen-
tleman's life, till near the time of executioa.
This is no excuse. It shews you were resdf
In she«l innocent blond at the first call : Tbit
you yielded In the first temptation. And if
ilruiikeimess could be ailmilled as an excuse
t'<M crimes of this nature, this would be ao
world ihenofvirtue and sobriety.
You, Sir, who have bcenthe principal actor in
this affair, what have you offeteil for yourself?
You admit, that you eraplayed a number of
people tu seize your brother, here in the heiil
of the city, and in the face of the luo, and to
carry bim on hoard the ship of which you bid
then the command. This is too evident to be
denied, and lor thai reason only, I fear it is ad-
To give some colour to this unparalleled
outrage, you say, that your brolher was dis-
tracied, and that you took him on ba«nl in or-
der to put him under confinement. Admittiag
that ynur brother was distracted, was the place
you carried him to, or the hands into whieb
you committed him, or the treatment which be
met with from tliem before he was got abaaid
the barge, at all proper for bis casn, orfit Ibra
brother tu think uf i*
You called Mrs. Gelhins to prove, that Ha-
hony was to have had 5/. a month ibr looicDf
aflerhimat her house. Sheremembeiatiolbiaf
of Mabony, Unt, had that been proved, com
it at all avail yon to say, that for three watb
before the murder was comniitteil, you inleiM
M faavo conlised bim imder the care o( dw
Trial ofAnnetUy and Redding.
A. D. IWi.
[lOM
ry iMn wbo now appears lo hate murdered
nt
Inilccd, you liave denieJ all cnti
irder, or llie ImiI koonleiiKe of
lb been jiroml by three wiinescei, (hat you
re in ibe c«ck-pit \r\u\e llie murilcr wsi
nwiltio^, and iiiiKht bare bctri] the doik
J ttrugtfle la ihe cabliin, the cry of muriler,
1 yoiir broiber'i dying groaDK, as weH a«
|y did.
Nay, two «rthem are posilire, llinl you itooj
ilinel at ibe door, mih a drawn <:iitlM in
ar hanil, wtiile ibe f«ct wai commitiini;.
m of ilirm snyii llial yau deliirred a oaodle
B tlie eabbiii, after tUe cry of mniitercc" '
I Ibat vou, xnonnlier, lock«d tlie Jooi
kthe Ecy nitli tmi. And it is a^rfed
l4a, ibat wlii-n the door was 0|>eiifid ibe next
iMiVi y"" brother was found ibercui
ciL
rhuM fact*, nilli otber circumnancea,
Ktg and preifiiant nrrxift ofyuur coiicen
.rauriUr; unlets the rrailil of Ih
lU be impeacbed, which yoii hate not at-
ipted to du.
li was cbareed as a circumstance ai[ain<il
I, that ahvr the fnct wta cominitled, Maboay
I Wbilewrreiunt sshoraby yon. Tfaislikf-
nywt d*nied. But it came out uf the mouth
tmlness called by yourself, that tbey ivi^ot
ta ibvyanl by 1m*« from yuu.
llnte iiolhin;! more to du, E>i:f>ui; I proceed
Iwt vbicb the duty uf my place obligea me
to, than to extiortyi
iih Uod by a
all to make your peace
^ . and hearty repeuuncc.
mercy iiiinfiiiite,aiiiltolbat wemualleuvt
rou. For ibe judgment of iliis Court is,
* That you, Sainitel Goodere, MatlhpH Ma-
hoDy.Cbaries White, and June Williams, gn
trfiui heoce tn the prison from wbeiine yuu
came ; and from ibeoce ynu shall be liil lu
the place nfeveculinn, where yen shall se-
rerally be hanged by the neck till you ahail
be drod. And the Lord have mercy
rcy on yo^^_
prisoql^^^l
e;teout»»^g
On Wednesday Ihe ISth of April follow
the prisoners Matthew Habany, Samuel (Jond-
ere, and Charles White, were Hcectiled at
Bristol, accordmir la ibe sentence pronounced
against them. Tbey all confessed the fact.
The body of Mahony is Uuog in chains near
the jilace where the horrid (act was uoroniiKed.
At the same Court Charles Bryan, Edward
M'Oaniel, and William Hammon, were in-
dicleil. trivd and convicted, tor a misdeineanor,
in Torcibly assistini^ and seizing sir John in tha
parish nl St. Augustine, iu the said city and
cniioty, sndcarr>inB; hiro on board the baig*
belongitig to llie lluuy maunfwar; and were
fined 40f . each, lo be imprisoDMl fur one year,
and then each tu give securily for biit guud ba-
hariour for one year morr
r The Trial of James Annesley* and Joseph Redding, at i
fc Sessions-House, in the OUI-Bailey, before the Right Hoi
'.George Heathcote, esq. Lord Mayor of the City of Londoi
"the Hon. Mr. Justice Parker, the Hon. Mr. Justice W'righl
Sir John Strange, knt. Recorder, Mr. Serjeant Urlln, atH
I others of his Majesty's Justices of Oyer and Terminer for t
- City of London, and Justices of Gaol-Delivery of Ncwgal<
j holden for the said City, and County of Middlesex, on Thun
Pday, the 1 5th of July, for the Murder of Thomas Egglestonft
45 George 11. a. d. 1742.
■ay, llie ilb ilay of June, 17-12, Mr. j aperl of the quality claimed by Mr. Anni
I'flMiDK brought up by the keeper uf let within Ihe bar.
ml, and J'lseph Redding (having I Proclamalion being made for aikiKe.
I himself l<i tube bis trial, pursuant | Cterk of' Ihe Arraignt. James Anni
Slfe« giieh In tiie proieculor'a snlicilor) j bold up your hand. (Which he did.) Jos
t, upau npplicatiuD lo Ihe Cuurl. in re- Redding, bold up your hand. (Which be diU
— — — Vnu Hand inilicled iu the county ol' MidllH
Thii is the person that claimeil the title | nex, by the names of Jomci Aiinesley, lale^l-
Mlalenf the eailnf Angle>ea: and had the 1 Siaines, io the county uf MiiidlcM!]!, labuuMl^fl
J in Ireland, relating to part of the latter, and Joseph Redding, late u f Ibe stmo.Uhourir
i>vKtiber, IT'lS, and nicovered it Fannii' fbr that you, not lining God before y'
he 1 but being inoiail and swluceil by Ibe 'it
1095]
15 GEORGE IL
Trial qfAnnedey andSeddingf
[109B
of the de?U, oo the 1st day of May, in the 16th
year of bis present majesty's reign, with force
and arms at the parish aforesaid, in the county
aforesaid, in and upon one Thomas Ej^glestone,
in the peace of God, and our said lord the king,
then and; there bein^, felon iousiy, wilfolly,
and of your malice atorethooght, did make an
assault ; and that you the said James Annesley ,
urith a certain gun of the ?alue of 5i. then aud
there, heing charged with [K>wder and leaden
shot, which gun you the said James then and
there had, and held in both your hands to
and agaiuht the said Thomas Egglestone, then
and there, feloniously, wilfully, and of your
malice aforethought', did discharge and shoot
off; you the said James Annesley, then and
there, well knowing the said gun to have been
charged as aforesaid ; and you the said James
AnuMJey, with the leaden shot aforesaid, then
and there discharged and shot out of the said
gun, by force of ue gun-powder as aforesaid,
him the said Thomas Egglestoue, in and uj)on
the left side of the belly of the said Thomas,
then and there, feloniously, wilfully, and of
your malice aroi'ethought,'did strike and pe-
netrate, giving to him the said Thomas Eggle-
stone then and there, with the said leaden shot
so as aforesaid discharged aud bliol, in and upou
the left side of the belly of the said Thomas
Eggflestone one mortal wound, of the breadth
of one inch, and of the depth of four inches, of
which said mortal wound the aforesaid Thomss
Egglestone then aud there instantly died; and
that you the said Joseph Reddinp^, at the time
of committing of the felony and murder afore-
said, feloniously, wilfully, and of your malice
aforethought, was present, aiding, alH>ttin)jr.
assisting, comforting, and maintaiuiufir the said
James Annesley to kill and murder the afore-
said Thomas Egt^lcstone in ibrni aforesaid ;
and so you the said James Annesley and Jo-
seph Ue<ldiug, him the aforesaid Thomas
E^j^v-lestone in manner and form aforesaid, fe-
loniously, wilfully, and of your malice afore-
thou&^hu did kill and murder, against the peace
of our loril the king, his crown and dimity.
How say you, James Annesley, are you
Guilty of tfiis'ftlony and murder whereof you
stand indicted, or Not Guilty P
Ati'iesU^/. 3Iy lord, I ohservc that I am in-
dictetl by tho name of James AnncKley, la-
bouror, the lowest addition my onomics "c^uld
possibly make use of; but though 1 claim to be
earl of Anjriosea, and a peer of this realm, I
suiimit to plead Not Guilty to this indictment,
and put myself immediately upon my country,
conscious of my owu innocence, and impatient
to he acquitted even of the imputation of a
criu)e fio unhecoming the di(>^nily 1 (Jaim.
Clerk. How Kay you, Joseph Krddinc, are
you Guilty of this felony and murder whereof
you stand indiited.or Not Guilty ?
Riddinfi. Not Guilty.
Clerk. Gulprit, how will you be tried ?
Htddin^, By God and my country.
Cl*'rk James Aihk bley, Hcdd up your hflnd.
Joseph Redding, hold up 3 our hand ; you
stand likewise charged, apon the eoraiier's n-
qnisition, by the names of James Annesler, late
of the parish of Staines, in the coun^ of MM-
dle!ex,gent. and Joseph Redding, onbe pariA
and county aforesaid, yeoman ; for that jon 00
the 1st day of May, in the year aforesaid, Gsi
not hafing before your eyes, hot being moved
and seduc^ by the instigation of the de? il, witk
force and arms, at the parish aforesaid, in the
county aibresaid, in and upon Thomas Enl^
stone, in the peace of God, and our said M
the king, then and there being, fekmioarijr,
wilfully, and of your malice aforethought, M
make an assault ; and that you the said Jamn
Annesley, a certain gun, of the value of 5f.
then and there charged with gunpowder tad
small leaden shot, at and against the aforesaid
Thomas Egglestone, feloniously, wilfully, sad
of your malice aforethought, did discharge and
shoot ofl*, and him the said Thomas Eg^gMStose
with the said small leaden shot out of the nid
gun, by force of the said gnnpnwder dischaiffd
as aforesaid, in and U|K)n theleilsideof thebellj
of him the said Thomas Egglestone, neartM
liip-hone, then and there feloniously, wilfnllyi
aiul of vonr malice aforethought did strike, ffii-
iug unto him the said Thomas Egglestone, then
and there, with the small shot aibresaid, so ai
aforesaid discharged, in and upon the said left
side of the belly of him the said Thomas Eggfe-
stone, near the hip-bone, one mortal wound of
the breadth of two inches, aud the depth of tm
inches, of which said mortal wound he the said
Thomas Egi^lcstone then and there instantly
died ; and for that you the said Joseph Red-
din:;, at the time of the felony aud murder
aforesaid, in form aforesaid done and commit*
ted, feloniously, wilfully, and of your malic*
aforethought, was present, aiding, abetting, as-
sisting, comforting, and maintaining the said
James Annesle}', him the said Thomas Ecfgle-
stone, in form aforesaid, to kill and murder;
and so you the said James Aniiesley and Jo-
seph Ked(lin«r, the said Thomas £gglestiHie,iD
matmer aud form aforesaiil, feloniously, wil-
fully, and of your malice aforcthtiught, did kill
and muiiler, against the peace of our said lord
the king, his crown and diguii}*.
How say you, James Annesley, are you
Guilty of this felony and murder, or Not
Guilty ? — Annesley, Not Guilty.
Clerk. Culprit, lu»w will you he tried ?
Annesley. By God and my country*.
Clerk. How say yon, Joseph Redding, ara
vou Guiltyof the said felony and murder, or
Nfii Guilty T—Htddin^. Not Guilty.
Clerk. Culprit, how will you be tried ?
lledJitii;. \\\ God and my country.
CUrk. Juines Annesley, hold up your band.
You Mand a!so indicted in the county of Mid-
dlesex, hy the name of Jumes Annesley, late of
the parish of Siaiucs, in the county of Middle-
sex, lahmirer ; for that you, not regarding ths
lat»s and stuiuies tif this realm, nor the paiM
and p'/zialtU'H tiieri'in contained, after the firit
day o iJuiir, l7'2a, «ii wit, the first day of Mafi
in the I6ih yi>t»- ot tie reign of our fOfcrrigi
nm
for the Murder of Thomas EggleHone.
A. D. 1742.
[lOOB
tthe second, now kin^ of Great Bri-
vhh force and arms at the parish
I the county aforesaid, with a oer-
»aded with gfonpowder and leaden
you in both your hands, then and
ad held, wii fully, maliciously and
did shoot at one Thomas EcfgW*
St the form of the stdtute iu such
ind nruvided, and against the peace
;he King, his crown and dignity.
' you, James Annesley, arc you
is felony whereof yon stand indict-
Juilty ? — Annesley, Not Guilty,
ulprit, bow will you be tried f
By God and my country,
jlod send you a good dellrerance.
ha?e been arraigned, and tbereanto pleaded
Nbt Guilty, and for their trial have pnt tbem-
aekes upon their country, which country 3*00
are : your charge is to enquire, &c.
BIr. Brown. My lord, and you genilemep
of the jury, this is an indictment for murder.
Tlie indictment seta forth that James Annesley
and Joseph Redding did make an assault with
a gun on the body of one Thomas Egglestone;
and that the prisoner Annesley did discharge
the said gun against the left side of the said
Thomas Eipilestoue, and did make a wound
on the left side of the belly of the said Thomas
£ggle8tone, of which he mstantly died ; and
that tlie said Joseph Redding was aiding and
assisting the said Jamei Annesley to murder
odants being thus arraigned, the the said Thomas Egglettone. Gentlemen, it'
ht the day too far spent to proceed we prove our charge^ 1 hope you will find the
prisoners Guilty.
so much expectation, and therefore
) come on the next morning ; but
for the prosecutor alleging they
:iend the next day, and desiring to
trial to this present sessions, the
pleased to indulge them, upon their
hat the defendants should be ad-
il.
on Mr. Annesley was ordered to
ireties in 250/. each, and Joseph
ir in 50/. each ; and this being done
ey were both immediately set at
«
esday, the 11th day of JnW, 1742,
or's counsel moved, that the trial
on the next day, which, by con-
defendant's sohcitor, was ordered
; notwithstanding which, the next
he two defendants had surrendered
and were ready with their wit-
»ro9ecutor moved to jiut the trial off
lay ; but not alleging any sufii-
) for the delay, the Court were
irect the trial to go on.
;ly the defendants were again ar-
I pleaded as at the last sessions, and
no challenges to the jury,
.viug gentlemen were impunnelled
JURT.
» Robert Ilarrop,
nmps. Win. Duck,
»lils, Wni. Boucher,
w Edmund Siowell,
vlins, Tho. Whitrhead,
rich, Francis Tredgold.
f any one can inform my lords the
inies Anneblcy, hold up your hand.
eddiog, hold tip your hand.
he jtiry, look upon the prisoners,
I to tlieir charge.
lid indicted by the names of James
itc of StainoH, in the county of Mid-
urer, and Joseph Redding of die
rer ; for that they, •Sec. (as in the
I, and upon these iudictmeots llibjf
Serj. Gapper, Gentlemen, the prisoners
stand indicted for the murder of Thomas Eg-
glestone ; James Annesley was the person who
killed the said Thomas Egglestone, and Jose|)h
Redding be was aiding; abetting and assisting
in the murder, and so they are both gnitty of
felony and muider. And, gentlemen, there is
an act of parliament made in the 9th year of
his late majesty king George 1, that if any
person does wilfully shoot at another, it is fe-
lony without benetit of clergy. Gentlemen,
the case is thus : On Saturday the first of May,
Thomas Egglestone, the deceased, and his sea
were going to fish, at a place called the Bloor,
near Staines ; they had a casting-net, and
there was a string which belongs to the net,
and this striug was alwut the decetMd's r^t
arm : tiicy were fishing in a miuinw Mong-
ing to one Sylvester ; and as Ifccf were fishing
towards the north of the
ceased, seeing the prisoner^
back again ; and as tbcj
again, instantly cameaplfcr
Redding, and seized oe
shoulder, and demanded Ai
ceased cast the net
on his right hand ;
prisoner, Annesley,
and swore at tlie
you, surrender, or
?i
pointed the gun
liefbre a wwdaf ij§fc
force of the
thed
his band
whatbafeiv
im
took a
of the Ml;
tniVBd
YevMKf
•rtew-,r.i
■d sh'.l in*
» sb'j; ipf '
bor.'r: ^ ^
the de-
aod werrf
geirig l»ack
J<iS#.
by t'.t
; fcot fliV' <^^
er, tihicii w:.*
op th«r r\z»'
in hif :ir
d IT *?
8 ff- *
*4 '
.* ■•
1099J
15 GEORGE II.
Trial ofAnneiley and Reddiagf
[iin
they were on the other side of the rirer, about
160 yardi from the place where the accident
happened; they heard a gun tired, and the
young man cry out that his father was killed ;
•nd when they came to the rifer-side, he bad
dragged the net out of the rirer ; upon this
they crossed orer, and found the man dead, or
to bad that he could not live, and thereupon
directed the son to go and fetch Mr. Cole, a
suigeon at Staines : he went accordingly to
Mr. Cole, and desired him to come along with
him, for his father was shot, and he believed
he was dead. "Why, says Mr. Cole, if he is
dead, it does not signify my coming ; 1 can do
hhn no good : so then the young roan went to
Mr. Russel, a constable at Staines. But 1
should tell you, gentlemen, that as soon as the
prisoners saw these three persons, Fisher,
Bettesworth and Bowles, coming towards the
river, they ran away. Afterwards Russel, the
constable, and some other persons coming up,
they thought proper to pursue the murderers :
accordingly they went to a farm-house, where
Annesley and Redding used sometimes to
lodce, and there they found Aimesley, and ap-
Erehendcd him, and sent him to tlie round-
ouse at Staines: Redding could nercr be
found ; but he has surrendered himself sinco,
in order to take his trial. The prisoner Annes-
ley was carrie<l before a justice of the peace, I
think sir Thomas Reynell ; he was carried to
nounslow,and from thence to Lalfeham ; what
that enmination was, I cannot tell. They
made application to this youug man to be fa-
vourable, and not to carry on the prosecution :
says ho. Gentlemen, I will not sell my father's
blood. This, gentlemen, is the nature of the
case ; aud if we prove otir charge, that they
have been guilty of murder, gentlemen, you
will tiudtbem Guilty.
John E^glestont sworn.
Serj. Capper, Give an account of what 3'ou
know of this matter, and speak the truth.
J. Eggli'ttone. An't please you, my lord, on
$uitnrday the first of May
Sen, Capper. Speak slow and deliberately,
that the Court and tne jury may hear you.
J, Egglcstone, .4n't please you, my lord, on
Satunlay the first of May last, I and my father
were gomg[ up Staines river, to catch a dish of
fish in Staines moor, in the parish of Staines,
with a casting-net ; we fished all the way up,
till we came to this pound.
Serj. Capper. In whose possession was the
ground ?
J. Ei^gUstone, It was one Mr. Samuel Syl-
vester's meadow ; wi* were turning back
again, an't p!ease you, my lord, in order to tjfo
home ; my father, he carried the net uj>on his
aim, and the string was fastened to his arm.
Serj. Canpfr. Well, as you were coming
back from tl^hing, what happened then ?
J. Egglestonc. By that time we had got
half-way in the meadow, we saw Joseph Red-
ding and Mr. Annesley running, and Joseph
Redding out- run Mr. Annesley, and cane up
U my father first.
was the got ti
Seri. Capper. When they came up^ sbl
was the first thing they did r
J. Egglcstone. Redding took my ftthoky
the collar, and demanded uie net, and be »
fused to deliver the net.
Court. Did you see him takebimbythi
collar ? — J. Egglcstone. Yes, my \oti.
Serj. Capper. What became of the o(tifi»
wards P
J. Egglcstone. My father threw it iitotk
river.
Serj. Capper. How far were you fm thi
river then r
/. Egglcstone. I was about two yardsfiM
the river. After the net was thrown into tki
river, Annesley came up with his yua, wi
swore, God damn your blood, deliver yoor Ml,
or you are a dead man ; and he fired off bdbe
he received any answer from my father.
Serj. Capper. In what manner did Aaaed^
hold his gun ?
J. Egglcstone. In this manner. [Poisliif
the gun straici[ht forward, holding it
breast-high, stooping a little.]
Serj. Capper » liow near
your father when he fired it ?
J. Egglcstone, It was close to my fatiMi^
side ; he put the ^un between ReddinjrandBj
father, and shot directly into his lefl side, Iwr^
(holding his hand to his hip) he bad a phk
button there, which was bruised to pim;
then my father said, You rogue, what han
you done ? I am a dead man ; and dmpfii
immediately.
Serj. Capper. What did Annesley sayte-
fore he fired ?
J. Egglcstone. He swore, if he did DOtd^
liver the net, lie was a dead man; aodtiua
fired immediately.
Serj. Capper. What did you do afler joa
heard your futlier say he was a dead mum ?
J. Egglcstone. 1 took a knife out of my
pocket to cut the string of the net : and Aod^-
ley said, You rogue, 1 will knock out jonr
brains too ; and held up the butt end of hit
gun ; upon that I jumped into the stream, aod
cut the strini;, and drew the net over to tbe
other side ol the river : then says AoDeslev,
The rogue has gut the net, let us go oa the
other side after him.
Serj. Capper. Who did you see when jos
came on the otlicr side of the river ?
J. Egglcstone. I saw John Betteswortli,
John Fisher, and John Bowles ; and wben^o*
nesley and Redding saw these three men, they
ran away directly.
Serj. Capper. How near were Bettesirordi,
Fisher and Bowles to you, before AnnesWy aud
Redding ran away.
J. Egglcstone. As sopn as 1 got on tbe other
side of the river, they saw these tlirec men
coming, and then they ran away ; and Bettff"
worth, Fisher, and Bowles, came through iht
river to the side where my father ky deiij
they came from one side to the other,
sen. Oapper. What did you do ihmf . ,
J.£gglatmi€. Thty bid Be get a MPfNii
•1
w
Murder if Tfiomai E^ghslonc.
A. D. 1742.
t Clittttes Cole,
lurgeoD at
r. Wben vou came to Staines,
illi Cole ?
re. Yfsi tni I tolil him my
t, tnil i believed he wu ilmil, ot
e never came near my I'lther;
Kusael ttir coustahle, auil he
nsmeu willi liim, anil went to old
houie >t Yeoieney f«nn, to
an that killed my fitlier ; we
.11 ruu[i'I. and found J nines An-
How long nere yoa tbere
I was lliere about a quarter of
KtUe III ore.
■. Were you present then f
e. Yes, I WBi there all llie lime :
le you, my lord, tliey polled hiu
'. Where was he hid f
e. Me was hid in a place which
ftwl from the ground, wliere lliey
•ail any aort of iuiober ; it is a
~ er the waslihouEc;
makes raediciues fur
la there r chimney io il ?
~^f. I ito not know.
Wai he Blandin); op or lyiog
*as lie. when he was found?
. t do nnt knotr ; lor 1 did not
ic was palled down: he was car-
"r into Ihe yard, and sal there
: of an hour, and Ihen was put
Bhal brought up my father, and
lb« round house al Slainet.
This is all you knot* ; is it
An't pictse you, my lord, I
great deal more.
"•- Who pulled him down ?
\e. 1 do not know.
-. Wb* this If ouad the occasion
I detih f
Voi,i
Goon
" ^7 y«
lay in ihe round-house all
ICxt day Anneiley, the prisoner,
10 e justice at llouoslow ;
Ubc Kercher there, who
Im( Hoc Kei'cher laid ia no evi-
'iBfrisoner^,
We wilt lei this alone • lilile.
yan prete he was any ways
M •gent by the prisoner J
r. 1 belie*e we can.
ihtjury. My lord, please to ask
' was no quarrel, bustle, or
I Annnlay, Redding, and
I'm the gun weui nH'.
. There wa* no ijoarrel or jost-
rer gair him an ill word.
iX:
/. Eggleitone. No, no reslHlance al all.
Q. Was there no Jostling, nor miy thing ela«
J. EggUito'K. Yes : Bedding took my fa*
tber by (he collar, and Anuesley cam« up in
the mean lime.
Court. What happened between your falbet '
and Redtling bel'ore Anneiley came up?
J. E^gtesiont. He demsnded bis net.
Court. I Ifaoughl you said there was (Oiiie
J. EggUtlarif. No other jostling than laying
his hand upon my father's collnr ; hut my fa-
ther oeier laid his hand upon him.
Mr. Bruien. Hoiv near were you when
iteildiiig' laid his hand upon your fallierf
J. Ef!gleilone. Aliouta yard and an half off.
Mr.iJruii:n. Y'ou say he shot off the gun ; I
ask you wliat you mean by shooling offihe gun?
X Eggletlonr. Why he fired the gun to
shoot myfalher.
Mr. Broirn. What do you mean by sbooting
off the gun ?
J, Egglfstone. Hecamcupdirectly,as irhs
was going to shoot a dog.
Mr. Broan. Did you see him draw the trig-
ger of tbe gun f
' " Ustone, No, I did not.
•n. Was Ihe gim cocked belbre \m
came up .'—J. EggUslane. I do uot know.
U. Did nol yuu say that il was ?
J- EggUstonc. I do not know IhHt I did.
Mr. Broan. Pray, was any body prncnt it
the lime t
J. Eggldiont. There was nobody near but
Betleswurih, Fisher, and Bowles ; uor nnbody
Mr. Brown. Did Ihe prisoner offer you any
money.'
J. EggUitont. \ei, he offered to settle SOf.
Mr. Brotsn. Where wa« Ihis T
J. Egglafotie. When I was at Lalchlln,
the next day after my father's death.
Serj. Capper. How came you there ?
J. Egelalone. We went to a jnstice's at
Brentford; but he not being at home, we pnt
up at the Ited Lion there ; and while we were
there, sir Thomas Reynell came in, and order-
ed us to go to Laleham ; accordingly we went
10 one Mr. [jee's, into ft little room, aud there
was Jack Lane, Mrs. Chester, and the prisoner :
young John Lane offered uie ]00/. a-year; but
the prisoner said he could nol settle ldo'.s>year
upon me, lor he had more to du lor ; but he said
lie woulJ settle 50/. a-yc»r oo me. This was
said in the presence of the prisoner.
klr. Brott'n. Did he mention what he would
give vou 50/. ayear for?
/. Egglfiione, Because I should not come
in as an evidence acainst him.
Serj. Capper. What is Ihe rcMon you did
nol comply with this offer ?
/. EggleHoat. I told them, 1 would not sell
ray father's blood at any I'ale. [The counsel
tor the prosecutor having datM ■ii\\Vk v\Cuk wV.-. .
I, Iw wMWWiS-e»TO\n«A«aX*fto*^^
1105]
15 GEORGE II.
Trud ofAnuedejf aud Reddiiigt
[UM
Q. Pray, in what,nianner did Mr. Aunesley,
ileddiog, and your fatber stand, when this ac-
cident happened ?
J. Eggleitone. Reddinff stood between An-
oe^ley and my fatber, and had bioi hold by the
collar.
Q, Do you know William Duffel, and had
not you some talk witli him ab«mt the manner
of your father's death ?
J. Egglestone. No, I neyer saw him, oor
had any talk with him.
Q. Had you any conversation with one John
Dalton at Laleham, where you say you were
offered that money ?
J. Egglestone, I came out of the room to
ask him, whether I should take the money or
not ; for he said 1 had better take the money,
and not hangf the man.
Q, Then you said nothing at that time about
the manner m which your father was killed ?
J. Egglestone, No, Sir.
Q. You say you stood by, and saw Mr.
Annesley point the gun to your ^ther : did you
^ee him cock the gun ?
J. Egglestone. I did not see him cock it ;
the gun was cocked when he came up to my
father.
Q. Do vou know one Giffard ?
J. Egglestone Yes.
Q. Vvlien did you come to he first acquainted
with him ; before ur since your fatlier'^ death ?
J. Egflestone, After my father was killed.
Q. DiJ not you meet with him at Staines?
J. Egglestone. Yes, 1 believe I did>.
Q, Did you ever see him ther^ before ?
J. Egglestone. No, never.
Q, ijid you give him any orders or authority
to prosecute upou the account of your father's
death ? — J. Eaghstone. No.
Q, Do you know one Williams ?
J. Egglestone. Yes.
Q. Where does he live ?
J. Egglestone, He keeps tbe White H 01*56
in Piccadilly.
Q. How did you come acquainted with him ?
J. Egglestone, He came to Staines, and sent
for me.
Q. What did he want with you, wheu he
sent for you ?
. J. EggUUone. I don't know ; I went to live
with biui as a servant.
Q, What business were you of, when your
father died ?
J. Egglestone. 1 worked with my father as a
carpenter.
Q. If you were brouglit up a carpenter, how
came Williams to find you out for a servant ?
J. Egglestone, 1 can't tell.
Q. (luw long have you live<l with him ?
J. Egglestone. Ever since my father's death,
and 1 live with him now.
Q. Havc you not seen my lord Anglesea at
Williams's ?
[H^re the Court interposed, and Hud the
question was improper.]
Q. You say you ore WiiUama'a aartaaii
bMwe yoa not liuicd with hin al UttMrf
J' Egglestone. Yes.
Q, Do vou dine at his table now t
J. Egglestone. No, I am hisservoDt
Q. Do you know the rcatoo why ym vm
sent from dining at his table to draw ftieer?
J. Egglestone. No, Sir.
Q. Do yon know one Paul Keating?
J. Egglestone. Yes.
Q. Do you know any thing of a Bflli b(
drew for you at the Oxford arms ?
J. Egglestone. He did draw something of i
note, but [ tore it.
Q. What made you tear the note ?
J' Egglestone, Because 1 did not liks hii
proceedings.
Q. W|iat were the proceediogi that jn id
not like ?
J. Egglestone. I do not know ; I did Mt
understand them.
Q. W^hy, did not you read tbe note bdbrc
you tore it ? — /. Egglestone, No, 1 did bm.
Q. How came toe DOte to be wrote? N
he say nothing to yon aboat writing of i Mk
before he wrote it ?
J, Egglestone, Nothing at all ; but be d^
sired me to copy it.
Q, What did he sav to you when he kmd
you to copy the note?
J. Egglestone, Nothing; it lay ipoa ik
table, and 1 tore it«
Q, What did you tear it for, if yon hid m
read it ?
J. Egglestone, Because it was about th^p
that 1 did not know what they were.
Q. Did not he desire you to copy tbe Mil -
J. Egglestone Yes.
(2. \V hat did he say then ?
J. Egglestone. 1 cannot tell what be wi
Q. Were you ever at New-prison to see Mr.
Annesley ? — J. Egglestone, Yes.
Q. W hat did you go lor ?
J. Egglestone, I cannot tell.
Q. 1 ask you what you went for ?
J. Egglestone, 1 went for my own ftoey.
Q, Did you not send np word to bish jfW
were sure he would be glad to sec you ?
J. Egglestone. I l>ertbve I might.
Q. What was the reason for which jm
thought l\Ir. Annesley would be glad to see }N*
J. Egglestone, I cannot tell ; 1 was wuiiB;
to see him.
Q, Did you never, iu speaking of ;«>
father's death, say that it was done acdwB
tally ? ]
J, Eggkstone, J do not know that I did.
Q. Did you never sav to Keating, that J<b
were to have SOO/. or had a promise, or ilui ;
you were to have security, and from whon?
J. Egglestone, No, Sir, 1 never did.
Q. Did you ^ive the same account, wilhi^
spect to the holding of the gun, as vou do Wt ■
before the coroner's inquest, and ^^^^^\
justice ?— J. Eggle$ton§^ Yes, I am sua 1 d>> ■
Q, Did not you give two aooounts bslifi^
conMMH^aiaqucst; partat onatiiM^aBd «
ooL. mmI thin mMuidar wha« jw ~^
JtiT tkt Murder of Thonuu EggUaone.
id you iMTer njr lliRt the bait «n<l of
na up to his tlioulilcr, »ud tha muzzk
awnirard?
iltitone. No, f did not.
1 youneierny any tbiagrtoany boily
loner of Mr. AoDetley'i ilntwio:; oue
t back ?— J. EgglatoM. N". otvcr.
in you tell nbicb tit' bis lege bt ilrevr
'.Itttone. No, I caonot tell vUich he
k.
J you Dctreruy hIugIi T
Utten
No.
ncAoJy i
■letlont. No, Mver.
japptr. You t^ yon ircDt lo thi
Irmi with KealioK, uirl tlieie wa:
g talked at' relalinji to a note ; va:
F ofler made to ^ou thera ?
•latone. No, Sir.
iapptr, Vou talked ofa paper tbat wai
Tou know llie coiiti^Dts of it ?
Uttone. No, Sir, I do not.
Jii/in BctteSKOrth inoro.
la/iptr. Tell u* irbat you knov«rihi!
D(l wheie you were when you heard i
on-Oie in oFAIay ?
vorth. Tliotuai U,gg[ataBc and liii
! B-liihlDz; I wai 169 yanb lome
ea from ue river, aa near ti I could
hat ground naa It in ?
morth. They were iu the pound called
"Sapper. Are there many hed|;«B on
if ibe river where ibe deceased nan t
aorth. There were a pretty many nil-
any body tniglit *ee Ibrougb them.
iapptr. What did yon scef
rortk. 1 MW Joseph Iteddiog aod Mr.
come over the hedge.
tapper. What hedge?
tiorth. The hedge that parted Mr.
-'fl grouad fran Mr. lUddiug'a groaod ;
. know whether one of them did oal
« the itile; then they both rau after
ne and bis mm ; yonpg Reddiofr came
i^ptr. Did- he by hold of Eggle-
tacrth. Whether he laid hia hanil upon
', or wbal, I cannot tell ; but the boy
ho was it laid hold of the aboolder or
Korth. Reddug; I sawhiahantlnpon
Ider or collar of the deceased, bui 1
ay poMiively whether he had him by
Ider or collar.
iafper. How long was it after that,
caky came up t
worlA, The boy was gone but a liltli
a hi* father, an8 when Bfr. Anneslcy .
to his father, he carae back a^in.
iapptr. HownearwaabotolutrBlte,
a accident bappetied t
XVII.
ADnealev and Jtedfiaf CMae ■(> aisM. w-
gelher, but Annealey ome np ^k; mm. urr
gan weal off after be cine i^. J mir im
■moke and beard Ibe fire.
Hejj. Capper. Ak job wen ItH- yani-.e£
how came you to come up ?
BcltaaQrth. Theboyc«lMlD ik bul^
bis falherwaa killed.
Serj. Gapptr. Wbocaaci^Mif; wA *«. '
Belltnsorlh. JahaBowl«,B4iaiMM i^rr
We come lo the nver jort a^MMr. !•>■ ^vw
where Hr. Eggleslonc lay, tmt «•- t*^ ^
gel over ihero without Im^ ut> luw mg.
(pulliag hb band lo his iwijii'^ t«t ■■ miv
over in a ahallower place a liilt JmIw
Serj.Gappet. Were Aoneiitrr Mi ihwiMK
there iiheu you esme over f
JitUeiwarlh. No, they taBaM*}'ki^,M
SerJ. Gapper. WasE|[glMU>MM»4>M^-
when you cams' op ?
Bcltcaeortli. He Was uol deaa, bat uccai
nat speak. I desired the Uay t>r y«. iv: .*,
geou, and he weol away diieMij .
Serj. Gapper. Whooaiuc hMSW^^Mr
Bettnwarth. I do tM kMOW.
Serj. Capper. Did yoM all Ifaaasi^M^ah.
together ?
ficKesvorfA. Ya, 1 wanMai^^^^
tore the hoy cried out, fur 1 ■
I ouulil not see tlw bay tm 4
he was in (be river, Ud h
his father's ■
but I saw the buy •
iTben I cime up,
broii(j:ht cross Ik
Serj. Gapper.
Btttrsaorlh. Hi
up hi* head, he
could not siieak :
1107]
15 GEORGE il.
Tri4d ofAnnesley and Redding^
[1108
between Annesley, Redding, and the de-
ceased?
Bettemorth. No other than their stri? ing to
take the net away.
Q: Do yoQ remerolier any thing that passed
in tho Round-house? Did the prisoner say
any^ thing there ?
Beitesworth, Yes, the prisoner said he de-
mred to be killed out of the way, for being ac-
cessary to such an inuocent man's death.
Mr. Brown. What did he tell von besides ?
Bettetworth. He said he woofd have gone
home for more men, but Joseph Redding
would not let htm.
Mr. Brown, What did he want more men
for P — Bettetworth, To take away the net.
Q. What answer did he say Redding made
bim to that ?
Betiesaorth. I believe it was, that he said
we can do it well enough.
The prosecutor's counsel having done with
this witness, he was cross- exammed as fol-
lows.
Q. Did yon see Mr. Annesley and Redding
before they came up to the deceased T
Beitesu'orlL Yes, 1 did.
Q. Did you observe Mr. Annesley making
any use of bis gun before he came up f
Betuncortk. I saw bim oiler to shoot at a
crow.
Court, How long was that before this ac-
cident happened ?
Bettesworth, 1 believe about half an hour.
Q. Was the crow flying or sitting*
Bettesworth. Flying.
Q. Did you observe whether he diil sliool at
the crow ? — BcttcszcorUi, Not then, he did not.
Q, How far were you otf then f
Bettcswitrth. About as far, 1 think, as \s hen
I saw the man killed.
Q, What was the |K>sition of the gun when
you saw him come up rnoninf;; ?
Bettesjcorth, It was in this manner, [holds
it as if the gun was with the muzzle haoging
a little slanting towards' the ground.]
Mr. Brown, You say you saw Annesley and
Retlding in the other ground before they came
into that ground which belongs to Sylvester —
what were they doini; there ; were they stand-
ing, sitting, or what 1'
Bettesworth, They were sitting or lying
voder the hedge, I cannot tell wliicb.
Q. For what pur|M)sc do you imagine they
were sitting or lying there ?
Bettesworth. I cannot say that, 1 may ima-
gine iliey came to take the net away, 1 cannot
imagine any thing else.
Q. Did you see the boy fifo into the river?
Bettesworth, Yes, and it was just afler his
father was shot.
John Fisher sworn.
V
Mr. Brown, Do you know tbe prisoners at
the bar? — Fisher. 1 know Mr. liedding.
Q, Do you believe this to be tl»e person who
WAS jk\ou^ Willi 3ir. Reddiug at (be time that
\
Mr. Egglestone was killed?— LiM>k at Mr.
Annesley's face, and see whether that is the
man.
Fisher, I see Mr. Annesley, but I eamflt
say that he is tbe man ; I saw two men lia
under the hedge a considerable time, and saw
a piece in one of their hands.
Mr. Brawn. In which groond were ihey ?
Fisher, I believe in Mr. Redding's gnNmd.
Mr. Brown, In what ground was Eggle-
stone?
Fisher. He was in Sylvester's int^ond. Bet-
tesworth called to me, and said, There is Red-
ding running after Egglestone, and Redding
laid hold of Egglestone, the deceased, sod
then came uu tbe other with a piece ; 1 caoaot
say whether he Uniched him or no.
Court. In what mannec dkl Redding Isj
hold of him ?
Fisher, I cannot say, I was at aoch a dis-
tance; but I thought he laid hold of bit
shoulder.
Mr. Brawn, Did Egglestone make awij
from him ?
Fisher, Yes ; for he knew he was oat of the
bounds that he ought to have been 6ahiogin;
and there was a sort of astrugq^lc to take awsj
the net ; and I thought that liedding and dn
other person did botli snatch at the net, mi
then the gun went off.
Mr. Brown, In whose hand was the gna?
Fixhcr. Not in Redding's hand, but in thi
hand oMhe other person.
Mr. Brown, Were not you attentive at dnt
time, to see in what manner he carried tin
gun ? •
Fisher. It may be this way, or this way, I
cannot say wheiher he had the gun against bs
shoulder or no.
3Jr. Brown. How near was he to tbe de*
ccasfd ?
Fishrr. Very nigh, 1 believe not abofs de
length of a guii.
Serj. Gapptr, Did you see John Egglettan
by, when you tirst came up?
Fisher. He was near tbe river.
Mr. Brown, Did you bear the boy cry ostf
Fisher i Yes, he said his father was killed;
he saw me, and called me by my name, ssd
said. My father is killed, and I came direetlj
cross the river.
Mr. Brown. What then became of Anacdcy
and the other?
Fisher. They ran away : we hallooed after
them, but I did not think the man was sbot,
though I saw the smoke and fire of tbe goa.
Q. Who went over tbe river first ?
Fisher. We were all three together alotflil-
I cannot tell who was over first, but I believt
I was.
Q. What was said to the boy then ?
Fihher, Nothing ; only to gu and- get aaor-
geon.
Q, Who bid him go?
Fisher. Somebody did, I did not I bciiiN
it was Ikttesworth, and the boy riiu away ^
rectJy.
1109] fur the Murder of Thomas Eg^edone. A.D. 174S.
[1110
Q. Was there any sursfeon brought there?
FUhtr. No.
Q. Who came there aAerwardt?
Fisfter, Mr. Sylvester ; he sair the deceased
lying upon the ^und, bat he was DOt there
when the murder was committed.
Q. Were you in the house when he was
tMheuT—Fukcr. No.
Q. Were you with him before the justice of
Fiiher. I was examined, hut I was not pre-
•ent when the other witnesses were examineil.
BIr. Brown, What distance was there be-
tween you and tlie deceased when the gun
went oirf
FUker. One hundred and sixty- nine yards.
Q. Do vou include the breadth' of the ri?er ?
FUher/Y€8, 1 do.
Cross-examined.
Q. Yoo say you think that both Redding
and Annesley snatched at the net f
Fisher, I think they did.
Q. Do you think it was possible for you to
kear what passed between them ?
Fiiker. I could not hear one word.
Q. 1 would ask you, whether young Eggle-
itooe, before he was examined by sir Thomas
Aej neU, did not say to you be believed the gun
diaiio off by accident ?
fiiker. He said he believed it was not done
wilfully. I was called into a room with
Cbeiter and Lane: he bad money offered him,
in Bay bearing, by John Lane ; he offereii him
lOOlTayear. — Mr. Annesley said. He could
not give him 100/. but he would give him 50/.
far be had others to do for : then, said the boy,
I do uot care to sell my fatlier's blood ; but 1
will do as my friends direct me ; I believe he
was in liquor.
Q. What did you say to him ?
Fisher, 1 said your father is dead ; the
ttMmey will do you good ; do not swear any
thioff against him, if you tiiink it was done
aecioeatallv ; he said. The money will do me
9ood if I had it ; and then said, I believe the
gentleman did not do it wilfully.
Q. Had you not some conversation together
tfher his examination before the justice ?
Faker, 1 asked him, after he was examined.
What he had done ; and how he could swear
against liim, when be had said so and so to me ;
■aid be, I did uot know what I said.
Q. That he did not know what he said, to
Wbooi?
Fisher, I asked him, how he could swear
against him when he knew what be said to me;
laid be, 1 do not know any thing of the mat-
ter; be did not remember what he had said to
Q. Do you know Mr. Williams the clergy-
^u?— FmA^* Yes.
Q* Did not you make a declaration of this
labial?
Fkher, Yes; and I told him what I now
aay, 1 naan what passcul between us at the
b« want before the justice : I said tg^Mr.
Williams, that Egglestone told roe be really
lielieved that tlie gentleman did uot do it wiU
fully.
Q, Repeat all that you said to Mr. Williams.
Fisher. That the boy said to me, Mr.
Annesley had offered him 50/. a- year, that the
money would do him goiid if he had it, and
that he believed the gentleman did not do it
wilfully.
Mr. Brown, Did not be say it was wilfully
done, as you were going along to the justice's ?
Fisher, All the way he went, he said he be-
lieved he did it wilfully « but at>er the prisoner'
bad been talking with him, he said he believed
it was not done wilfully.
Samuel Sylvester sworn.
Serj. Capper. Did yon see the deceased
after he was dead ?
Sylvester, He lay dead on the ground that I
rent near the river side, 1 think about the middle
of the ground.
Serj. Gapper, Do yon know how he cama
by his deatii ?
'Sylvester, J was going npto look after my
ground, to see if there was any cattle in it, or
any thing amiss. — I called at \be Cock, and
drank two pints of beer, and when I came
within two hundred yards, or thereabouts, of:
my ff round, 1 met three men, who told me old
Egglestone was killed ; 1 did not believe it ;
they then pointed to my ground, and said.
There he lies ; I saw several |icop1e there, upon
which 1 thought there was something more
than common, and so I went up, and saw Tom.
Egglestone lie dead in my ground.
Serj. Gapper, Do you know where the pri-
soner Annesley was taken ?
Sylvester, He was taken in a back building
belonging to Mr. Redding's house ; I was
searching the rooms myself, and heard the
|>eople say. Here he is ; and I saw Mr. An-
nesley, who is the gentleman there, come
down out of the place.
Mr. Brown, What sort of a place was it he
was found in?
Sylvester, It was a place to put odd things
in : it was not boarded up to the top.
Q. Did he come down voluntarily, or was
he pulled down ?
Sylvester, 1 do not know whether they pulled
him down, or helped him down.
Mr. Brown, Did you hear him say any
thing at that time f
Syhetter, I did not hear him say any thing ;,
I believe he was in a tit, for he trembled and
fell down behind the door.
Mr. Brown, Did you see him at the Round-
house P
Sylvester. No, I did not, for [ was gone to
search after the other prisoner. Redding.
8erj. Gapper. Were you at Lalebam before
the justice ? — Sylvester, Yes, I was.
ISerj. Gapper. Had uot the boy been drink -
ingy and did he not sleep before he went in to
the justice ?
Sy/reitcr. 1 VMXv«ia >Dk« ^v^«lttti^va^s\>^«
nil]
15 GEORGE II.
Trial ^Annesky and RmlSiigi
[IIB
quarters of an hoar ; I do bdiere be had been
ia liquor, but he was refreshed afterwards.
Upon the cross-ezaminatioD.
Q, HsTo you not received roone^ to pay the
witnesses fur attending here on this cause the
last sessions, and from whom ?
Syhetter. Yes, Ijpaid bomeof them, I think
it was by Mr. GifTard's direction, who sub-
pcenaeil me up ; I asked him who was to pay
me ; he said, I should be paid half a crown a
day for my time, which was as much as he
thought 1 oould earn at my business.
Q. What business is this Giffard* of P
Sylvester. He is a stranger to me.
Q, Do yon know whom he said he was em-
ployed by ?
Syheiier, He said be was concerned for the
kiiig.
Q. Did yon send notice of this accident to
any body as soon as the man was killed f
&wheiter. No.
■ Q. Do ytu know Mr. Williams ?
S^lvetter, Yes, i know him, but I nerer was
in bis company upon this occasion.
Q. What business does young Esglestone
foUow?
Syhaier, I cannot say what business be
fellows, 1 believe be draws beer now.
Q, How long hare yon known him ?
Syheiier, I have known him five or six years.
Q. What business was he bred to f
SfhcMier. Sometimes he would be out at
service, and sometimes be would be with his
father in the business of a carpenter.
Q, Where does he draw beer now ?
Sytvcster, I think it is at Nr. Williams's, at
the White-Horse, in Piccadilly. But this is
not the Williams 1 was speaking of before.
Q. Have 3K>u never been in company with
this gentleman, and had some convetsation
with him about this affair ?
Sjfhetter, I have been at the gentleman's
house in Piccadilly since this business has been
in band, but never bf fore ; and I have been in
company with the gentleman there, but never
had anv talk with him about this trial.
Q. Was not this WiMiams down before the
justice ? — St/hcttcr. I do not know.
Q. Did you ever see biro at Staines P
Sylvester. I saw him in the town of Staines,
I believe, about a week after the accident hap-
pened.
Q. Have you seen the boy, Egglestone,
there since P
Sylvester, I never saw him at Staines after-
wards.
Q, What, he has lived with Williams ever
since ? — Sylvester, I cannot tell.
Q. I ask you whether you have not seen
him at Willmms^s hoiiiie every time you have
been there ?—^ylvesier» Yes, i believe I did.
Serj. Onpper tlien said, they would rest it
here; and havthg observed upon the evidence.
* He innkes a considerable figure in the
\
conduded with aayingv he hoped it had fally
made out ^ the charge against the prisonen;
that the groond where the nan was kiNed
being the property of Sylvester, the prisstri
were trespassers by coming into it, and there-
fore answerable for the conscquenoca. That u
to Mr. Annesley, there was not only impUed,
but express malice proved opon him, for ikst
after he had killed the father, he waslbr beatug
out the son's brains, only because they woali
not let him and the other prisoner nm away
with their net.
Court, Blr. Annesley, yon are indicted m a
very unhappy case, what have yoo to say Ar
yourself P
Annesley, Mv lord, I am very mnUe to
make a proper nefence, having by the cmchy
of those, whose duty it was to protect me, ban
deprived of the advantages of an educalkiB I
was entitled to by fny birth.
All I know of the melanoholy accideBt ia
question is, that on the unfortunate day atea-
tioned in the indictment, I went out with ay
gun, in company with my innocent fellow-pn-
aoner, to shoot sparrowa, aa I nsnally did. As
we were going along, Mr. Redding,- who ii
game- keeper to the lord of the maaor, saw
aome people a-[K>aching within the rayab]^,
upon which he proposed to go and aeiae ibos
nett. I followed him, the deceased tluaw tbe
net into the river, and the boy jumped ia ts
f>ull it across, to prevent which I aloopsd ti
ay hold of one of tne ropes that trailed upon Ibe
ground, and at the aame instant, the fatal is-
stmment 1 had in my other hand, banging kf
my side, went off without my knowlecwe, aad
to my great grief as well as surprize. My be-
haviour, immediately after the accident, was, 1
hope, inconsistent with a temper that ooaM
murder a man I bad never aeen before, wilbsst
one word of provocation.
Whatever may be the determination of ysor
lordship and the jury, great as the misfortasa
of my life have been, I shall always connrftf
this unfortunate accident as the grcatot d
them all.
Court, Mr. Redding, what have yontooj
for yourself P
Redding, My lord, I am game keejier tonr
John Dolben, lord of the manor of \eofcoeT.
On the first of May last, in the afieruoon, Mr*
Annesley and I went out a- walking ; we nw i
cm w, and Mr. Annesley made an offer to shoot
at her, but 1 called to him not to fire, for duS
she was too far off: Soon after 1 saw "Ej^^
stone and his son fishing with a casOng<«it,
upon which I said to Mr. Anueslfy, 1 wooU
go and endeavour to take their net away, u it
was my duty to do ; accordingly I went op li
the deceasedlj and demanded the net, which bt
refusefl to deliver to me, and threw it into ihi
river, one end of the string being about hisana ;
I then laid hold of ttie stnng, and pulled, wlnht
the boy endeavoured to draw it cross tbe river,
and presently I heard tlie gun go oflr(aiy hack
being towards Mr. Anneal^), and saw tbe ■■•
faU dowa.«*I said to Mr. AiMMrifiy. I hoped hi
,^r Ike Marker <>f Thomas JLggUilont.
bad Doi (lioi ilic nuH ; h* n\A No, but liming
up llie IU|> of hU MHt, trc •aw be was shot ;
upon which Mr. Aonesley oriol nut, Wlisl shtll
I do ! aail fsptctaail ao inncli uonctru, tbat I
MD ■o'Ut "US quite an iMiilfiiitnl ihing.
Hr. HunK Campbell, at' counsel fur (he pri-
•OBen, stiid. tiiai Bltliont;!! be tii>ew by (lie
eOBTM ol' tlir t-ourt at (he OliUltnikey, he ttas
OMai liberty lo obur?e upon ilie |in>seciiior's
CTidvnce, yei he appebeii<li-<l, ibat I'oc the taae
, ofthe Court, be migbtjnn open ibe nature ol
tba ilertiiicc, without miuliij; any olfurTaliODS
vponit.
Tb«i tlie ilefence wliicli th« prJaoMra in-
•iMeil upon wsi, that the ^un went off merely
lijp Mcidtnl; that Reildiog wai game-k«eper
ta nr Jofan Dolbee, lord of tlie minnr of
Y«0*«iiFy, anil had a proper and legal depula-
Im for Mixing of nets am! oiber engines, for
dcMroyrng nf gime. That tbe deceased and
V» WD were poacbing triib a castin^-oet
wilbio tbe inanour ; thai Mr. Annestey went in
aud of ibe (pime-lieeper; and Iherefore the
yriwiMH bring about a lawful act, were not to
Mllcbas trespassen, and the dcdlli ibal wai
iba sociilentBl cunseqtience of thai art, would,
ia point of law, make Mr. Aanesley g'lilly ooly
of cbaace-medl ey .
Mr. Tltomal Sluplet tvOTB.
Q. D« you know the manor of Ycoreney ?
SutfUt. Yei: I am deputy In my father,
t*ba W steward tu air John Dolben, as ford ol'
Herj. Gu/i/irr. How do yon know tbia to be
St'.plti. t hftfe the grant of tbe maaor
Wtnu the dnn and chapter in my pocket.
Serj. Ciipptr. Are there any cnpy-holden ?
Staplei. Yea, I bate admitted tome copy-
bokkra; I know It lo he a mauo), because 1
tkt«e held one court there fur my father, and
b**» »e«ii hini bold aereral.
Sctj. Ciiitprr, Is there any mansion-house
'-^— -ing lothismunor?
ilti. There I* a manEian-hnoie belnngitij^
Vbtch I think is tbu house ibat Mr.
U*M in.
' ., What conrl waa it you held
'•^Stapltt. A court bacon.
Hr, TAtHnai Burlin^u/n sworn.
Q. Mr. BurllngKDn, look upon ibii deputa-
^•k Are yoD a soWcribiog wiincas to ilT If
R BK, JhI ynil see ibis executed, and by
•tatften. Yet, 8ir, Ibat is my name ; I
ir Jnba Doltien execute tl; ibiN is bis
aeal.
!. Wu it executed at ibe lime it bears
Yes; IbdiereontheTcrydiy.
Mr. Jam/:* Edmoailt sworn.
Q. Mr. Ritinonds, look upon that endorse-
taloagrBg
m
(he peaof! for Ibe connly (if Mlildtesex, and
heard biin ackooo leilge ihia to be his band,
and that it was entered according to tbe act of
pafllnmflnt.
Svx'y Gapper. Did you seeany entry vftt ?
FAiBoadt. H« nii) it was entered, und ac-
H'Udged ibis to be his hand, end lukl me
thai nai
infficiei
Q. My lord, we pray the depntalion may b«
read ; we will sand for the clerk of the peac»
to bring tbebookitieirwbetcit is entered.
Cl'rk reads. ^
" Know nil men h^ these presents, that I air
John Dulben, of Thingdon al. Findon in tba
county ol Nortbatnploo, baroucl and doctor of
■Jirinit}^, lord of tbe manor of Yeoreney, in
the parish of Staines, in the county of Aliddla-
■ex, by virtue of the se* eral acta ol* parliament
iaiely made, tor tbe preeerTBtian of tbe ^nme,
hare made, nominatetl, nulboriied, constituted,
and appointed, and by Ibese presents du make,
nominsle, authorize, constitute, and ap|>oint,
Joseph Rcddini;, the younger, of Yeoteney
aforesaid, in the said pariiJi of Siainea and
county of Middlesex, husbandman, to be my
■ of
VeoTetiey aforessid, of all and a
game, of what kind or nature sourer, which
now is, or hereafter shall be, upon or within
Ibe bounds, limits, or precincts of Ibe same,
with full power and nutborily, according lo
the directions of the statute In that case mado
and prntidi'd, to kill any hares, partridges,
pbeasauts, fish, or other game whatsoeier,
upon or within my said manor, and Ihtt boands,
limit?, and precincts of ihe same: And also lo
lake and seize all such guns, gjey-bounds,
aeiiing-dogs, and other dogs, bare- pipes, maret,
low-belli, ferrets, tramels, baya, tunnels, or
ntbei nets orengines, for the taking, killing, or
destroyiog of ham, partri'lges, pheaaants, fixb,
or other (fme, within Riy taid manor, and
the precincts thereof, that ahall be kept or used
by any person af persons, not legally qualified
to do the same : And further to act and do alt
and every thing and things which belonga lu
the office of a gamekeeper, pursuant 10 the
directions of the said act of parliament. And
loKlly, I do direct that tbe name of the said
.Toseph Redding be entered as such game-
keeper of i^y said manor, with the clerk of
the peace for the raid counly of MiddleMX,
pursuant or according tn the act or acts of par-
lismunt in that case made and provided. In
witness whereof, I hare hereunto act my hand
nnd teal, the second day of July, in the year of
ourl'ird i;*l. J. IJornEN."
" Sealed and delivered, being flnl ilnly
■taropid, m the presence of Jamca AlBick,
Thooiss Burlingsou."
'■ Midiltcacx. These are to certify, that the
namp'of ibn within mentioned JoMpn Itedding
is this day entrTed in my office, pnr^aui to the
■ininiein tiicb ('aw nisilu and provided, Daied
this a9ib liay uf January, ITil. P. Ww
11151
15 GEORGE II.
TrUU ofAnnedey and Redding^
Joseph Redding, the elder, sworn.
Q, Do you know the place where this uo-
happy casehap|)ened?— Kf<i(/iR^. Yes.
Q, Give an account of what you know.
Redding, i was in the next field, called
Chantrv Mead. This, where the accident bap-
peuedi IB called the llare Mead.
Q, What manor is it in ?
Redding. It is in Yeovcney manor, which
behNigft to sir John Doll)en.
Q. Where were you when this happened?
Redding. I was in Chantry Mead.
Q. Uow far were you oil' then ?
Redding. As near as I can guess, it is ahout
forty pole.
Q. What did you observe there ?
Redding. 1 saw noy son and Mr. Annesley
coming up. — I did not know who they were
till they came up.
Q. Did you see them imme<liately after the
accident happened P — Redding, Yes, presently.
Q. Uow did they behave upon this occasion ?
Redding. They were so troubled they could
bard I V wag or speak : My son said lie was
afraid the man was killed ; and he said to Mr.
Anne&ley, How did you do it ? Mr. Anneslcy
said, I did not think of the gun^s going off.
Q. You say you saw them coming up ; did
you observe them when the accident happened?
Redding. Yes, i looked at them all the
while.
Q. How was the gun carried in hen it went
off?
Redding. Just ns I may hold this sword.
(Holding it in his right hand, hanging down
near the pocket a t'aw inches from his body,
almost upon a level.) He had it in one hand,
as ] have the swoitl uow.
Q. Did he cxprtss himself concerned ?
Redding, He was so conrornod, that he did
not run ten pole befure he fell donn, and beat
himself thus upon the belly, and said. What
have I done?
Q. Did yo".i ever hear of any quarrel between
him and this nmn?—*Rcdding. Never.
Serj. Capper. (On the cross examination.)
Where did you stand when the accident hap-
pened ? — Redding, in Chuntiy Mfa<l.
Q. Is there not a hed|>e between Chantry
3Iead and Hare I^Iead ?
Redding. Yes, I b€:lieve there is.
Q. How could ytm see tlirough tlic hedge?
Redding. It is a new hedge not above a
yard high, and 1 could see niiy thing that was
doing there as clear as I tan see yuu.
Q. Was Aunesley with his face or his back
tow ards you ?
HcJu'ni^. He uas side-ways to me.
Nrij. Oapper. Why Chantry Mead is north
of II lire Mead ; then his face could not be to-
w anis you ?
JitJdivg. No, I say his side was towards me.
Seij. Capper. You were speaking as to this
being a uiuuor ; how do you know it to be a
manor ?
Redding. Because there have been courts
kejn therv^
\
[Ills
Serj. Capper. By whom ?
Redding, By sir John Dolbeo.
Q. What is Sylvester?
Redding. He occupies thia ground: llett
the farm to Sanders, and Sanders letts it to bin.
Q. On which side of Hare Mead does the
river lie? Is it east, west, north, or sauth?
Redding. It is about south. *
Q. Does not this river belong to another per-
son.— Redding. No.
Q, Has not sir John granted the ftshcry ts
any body ?
Redding. I rent the fishery ^ the fishery U*
longs to me.
Q. Do yoii depute your tea to look lAer
this?
Redding. No, sir John Dolben depoteahiii.
Q, How came sir John Dolben to appoiri
your son to be game- keeper ?
Redding, Because they robbed me daily.
Q. Have you assigned that fiabery to uy
body ? — Redding. No, I have not.
U. Who owns the land on the other side?
Redding. 1 believe my lord Dunmore ii tin
landlord.
Q. Were vou standing up when the pn
went off, or sitting ?
Redding. I was standing up.
William Duffeli s-wom.
Q. Do you know John Egglestone, theM
of Thomas Egglestone f-^Di^eil. Yc-s.
Q. Have you ever had any convemtiflB
with him about this matter ?
Duffeli. Yes ; on this occasion he wai iC
mv house ; 1 desired him to tell the truth : He
said he would ; and then told me, thatu bf
and his father were fishing, they saw the pii-
soner, Redding, coming up ; that he dmrril
his father to give him the net, and he wooU
run away with it, but his father would not ki
him ; that then Redding came up sod de-
mandefl the net ; that Thomas kggtestonc
said he should not have it, and then threw tiie
net into the rirer ; and in the mean time tbe
other gentleman came up, and shot him ; thai
John Egglestone jumped into the river, uwlcut
the line of the net, to fiull it out on the othrr
side: and that when the gun went off, and liif
father droppc<l do\iu, Mr. Redding s<aid to the
other gentleman, l^rd, sir, what have \'0B
done! and then they both run home. Mr.
Abraham Egglestone, who mus present, asL»l
him, if he saw Mr. Annes!ey pull the uiggt^r.
of the gun ; and John Eirglestoue answvred,
that he could not tell. 1 asked him, if ibeit
was any quarrel or words t hat had passed be-
tween them, and he said. No. 1 said it wai
very surprising to me, that this gentleinaa
should come and shoot his father, and oothiii;;
more pass between them : I then asked him, is
w hat manner he held the gun ; he had a tfick
in his hand, and shewed in what manner tbe
gun was held in his hand, thus (in his right-
baud, the arm hanging down near the poarit
some inches from his body, and near opoa i^
level ^ which was tbe saoie manner that oU
Jhr ike Murder of Thtmas EggUstone, A. D. 1742.
[1118
said the ||run was held.) * I asked, if
bthe did it wilfully i be said beoouM
3fr long was this discoorse after this
liap|>enefi P
^ About four hours.
d you ever see this John Egglestone
r lie says be knows nothini|f of you ?
I. I have known him theie eight years,
18 been frequently at my bouse.
lat character has be f
f. 1 cannot siy much in his behalf;
could not mauage him at ail.
lat business did be follow P
(, His father was a cari>enter, and be
^itb him.
len did he leaTe Staines P
f. Soon after this accidt^nt happened,
lere has be been ever since P
I I baveseen him at the "White Horse
Ailly ; and 1 beard at btaiues that be
for to Ix>ndon.
id the man at the White Horse come
him in Staines ?
^ I did not bee him biro there.
Japper, Yoo say be Was at your
rho gare yon directions about advising
<*ak the truth ?
L Nobody : Mr. Abraham Egglestone
lim the same thing,
bo was there P
I, Nobody but Mr. Abraham Eggle-
1 myself ; 1 was desired to go and see
man came to be killed, and John
ne came to me about eight o'clock.
tapper. You say he conid not say it
illy done ; so he did not say it was ac-
f done.
/. No, he did not say it was.
town, l>o you apprehend he bad hold
in by the barrel, near the lock P
i. I understood by Egglestone's man-
olding the stick, that be meant that
lesley had bold of the gun about the
r the barrel.
John Dalton sworn.
hat discourse had you with young
)neP
f. On the Sunday, when the prisoner
r was carried to Laleham to be exa-
I went there; the company dined at
y Hound at Laleham; 1 staid and
iff a pint of wine there, and imme-
Aerwards John Egglestone came to
, and called me out of the room, and
wanted to speak with me.- When I
t, Ke said he wanted to ask my advice
ng this accident: I said, 1 wonder you
mk my advice, when tou have rela-
advise with ; be said, I thouebt tit to
, 18 you are my master. While we
king, Samoel Sylvester came out, and
ras persaading the boy to sell his fa-
9oAi the boy said, What do you mean,
yoo P My master is fiersuaciiog me to
JflNif • i then asked him, whether he
thought it was accidentally done or not ; be
said, be believed, it was accidental, rather than
any other thing. I said to him. Well, if you
think so; Wu will be examined when you c<»me
before sir Thomas Reynel, I desire you would
not forswear yourself, but be very careful what
you say.
Q. What character has the boy ?
Dation. He was very irregular, and used to
lie out.
' Q. How do yon know that ?
Dalton, He was my servant.
Q, What trade are yoaP
Dalton, I am a butcher.
Scrj. GappeK You say he has a bad cha^
racter; do you think he would forswear him«
self?
Dalton, I can say nothing to that.
8er|. Gupper, When was it you had this dis-
course with bim P
Dalton, On the Sunday, at the Grey Hoond
at Laleham.
Serj. Gapper, Was there any talk of money
then?
Dalton, Yes, the boy said he had been of-
fered money.
Q. But you say, he said he would not sell
his fatber'sblood P
Dalton. No; I said Samuel Sylvester came
and said 1 was persuading him to sell bis fa-
ther's blood ; and the boy said, My master did
not persuade me to any such thing.
Seij. Gapper, Are you sure, that this is
trneP
Dalton, Yes, I am ; I think I am in m j
senses.
Serj. Gapper, What did you say to him
afterwards?
Dalton. I told him he had lost his father,
and had no friend to take care of him, and be
knew best what he had to do.
Q. Did not you say it was better to take
money, than hang the man P
Dalton, No ; Isaid, 1 thought, by what he
told Die, that the man was in no danger of
being hanged; and therefore he had better
take money than endeavour to hang a man,
that he thought did not do it designedly.
[Mr. Higgs, belonging to the Clerk of the
Peace, being sworn, produced the book whervin
all the game- keepers of all the manors in the
county of Middlesex are entered ; (Ileads) Sir
John Dolben of Northamptonshire, baronet, to
Joseph Redding the younger, dated July 2,
1741. Entered January 29, 1741.]
Mr. Richard Chester sworn.
Q. Give us an account of what you know of
this matter.
Chester. I drove the chaise from my own
house to the Red Lion at Brentfonl, and then
to the Grey Hound at Laleham; I Went up to
young Egglestone, and asked him, how this
unfortunate thing happened ; whether it was
done designedly, or happened by accident?
Q. Where was lh\«?
Chett^r. This ¥i%a iX \ji\«V%m \ V^ ^iA"^^
\
A .^.i%
».
Jii5i
J
Q. I'
haj»py V
Q. C.i
licUm
Chantr\
•
|ieu(.'il, IS
(I \M
Q, U.
Bcdtit
Q. IJ.
lictUi.
forty |io!
d ^^
coming : ^
till thev .
accident >
Q. III.
licddir
banlly u..
afraid llu ;
Anne&IeVt
iaiil, I (iid i
Q. You
you observe . *
JReddin^,
itliilc. "»
Q. How ^
off?
JRcddinff, ,
(lloidincr U ii. •-
rii-ar the pock
almost upon n
aS I h:\\v the >
C?. Dill hoc
iicdditig, II(
not run ten pole
himself tiius uji
liavf: i (lone ?
(^. 1)i(lyo:icvi
him nnit tliis mun
S;?ri. Oappir.
W hiTij (iid you St.
(). Is ihcic not
3Ic-ail iiiid Hare ?.h
JidtJiu^. Yes, I
I.*. How could yo
JU'ijin^. It is a
yard lii^'h, and 1 coui
dji'!!^ iluTc as clear as
(i. Was Anuesilcy w.
*'vai«ls \ou ';' ^
/x : 1/ // v.;. We w as sid.
S ;i. (;i.y.;,cT. Why C
VI ii..iv- .^Kad ; tlienhia
>t.l»''..S \ fill.'
. . t .;i. . '!^, No, I say his s
Ni;j. Of./ycr. You uero
hiij.^ a iiKiiiui ; how do yt
2ii.1r.or .'
Iltddtnu', iiccausc there 1
k('|it Lhi-rc.
r ::a / Annesley and Redding^
iSV
.. .iUL^e
.sai «riHfra«^<»
• I. V
4B -"Aic^aere
4u
..» •<*'
■*«««M
. ..IVi.
^ ..«m;i*«Mi
. «Slk •*.**«
V
A
't
[1190
•u .1 because in an affair of jco great coom-
uieDce to him, 1 think lie has a ri^ht to mj
'--iience; and 1 do it Hjth lessi scruple, as I
iin IKS attorney without fee or reward. Mr
•«^ vo the 4th of Mav I went to Staines, to
isiruti the coroner's jury ; thoug^h, as 1 bad
Msc -.se to enquire into the fact, and prepan
fir Kr. Aunesley 's defence, I cuuld do him but
',c. ti lerrice more than by cross -examining the
V LuetAa for the crown, and making ohsertt-
iMirc -c their etideoce; one of the witnoMes
rm >^n Egglestoue, who has lieen exatniad
.*-:."'?. As to any thin^^ in his hebavioiir,
^ ni nky gif e evideiice ; but not of any jhai
.!^: «is reduced into writing.
7 i^,"»n. 1 can only apeak as to wku
« sa.'d before the coroner ; and I admit ibr
- *• tr'tirns, taken at that time, were redaicd
^1- writing by the coroner or liis clerk.
M*. King, the coroner, sworn, whoprodorH
.« Minuttis of the Depoaitions made htkte
Sf-n. Capper, Were thcsi* drawn np wIicd
)Lc£ :ftone was examined, or afterwards ?
x.%£. They were not drawn up ifKr*
« : -^.s ; the}' were drawn up at the same tine.
«^. Read them as far as they relate to JfLs
Sff]i. Capper, Did E^^lestone sign bistk-
iK^iSA*o ? — king. He did not.
S#ij|. Capper. As this j^entlcman is coroier.
«A&; hr has taken down ought to be signeJ
»v ihe deponent ; and if it is not, I bomUj
V^'wheud it cannot he read.
K.A\>fl /'or the Prisoner. The gentkflKi
na% obuse whether the}* will have the 3IinttKk
t:».'. v»' \Thether we shall give parole eiideocfi
V .vjte what Egglestone said at that tioie.
^ \'\it C!*ouosel for the prosecutor prel'enir^
•u* M. jutca, tliey were read, and are ai fcl-
if •^
May 4, 1742.
*.*^ •••H.T'.«»>s relating to the death of Taottf
b'v'.i-a C.4T0NC, who was shot in the foriaA
jt Staines, in the county of Middleses.
. wiv E^^lestone, son of the deceased, livifl:
1 Su;ae$, saith, That on Saturday, the iMtf
M i>. be and bis father went a-fishiaffiBNi
^ *.« tfvter'i (grounds ; and says, that one JMffk
icsMUusg came up, and bid hohl of his fubcr.
ami i«mauded his net ; upon which his iitk>
<«4ky bt should not hare it ; then the prisoo0i
.oiiMfa Annesley, came up, and said. Dm
^v«ir blood, surrender your net, or you an 1
41,^ laian ; and, upou bis refusal, the prisMtf
K«u vti* his piece to his shoulder, and presnM'
!•» |»«ec«tu the said Egglestone, nearttthi
iiiutiie part of his body, on his leA side, v^
>«hH ib« said Egglestone, who dieil prescatij
i»likr. Savs, the gun was cocked before N
^i«uie« auJ that the piece went off Ijefore ki
»ilMr\ refusal to deliver the net. lie san
4iirikKv«iNU dapped Ui hind to hia sde, ip
for the Murder of Thomai Eg^estone.
A. D. 174^
[list
a roiifue, you have shot roe, I am a
Q. That after the discharge of the
father dropped instantly. Sa]^ a, that
saw his father shot, he took his knife
be string of the net, and jamped into
; upon which the prisoner said, He
le net, and went to strike at him with
?nd of the fn^un ; and said, Let us go
ther side of the river, and fetch it.
It Ileddingr had hold of the deceased
liar, when the piece went oiT. Says,
»t offered any money by any body.
I for the Prisoner, This is the 4th of
he now says, that on the 2nd of Blay
f!i?red money at Lalcliam.
rapper. Arc these all the. minutes
took?
ing. My clerk was there ; these were
e mentioned that he took : if I may
hing more from my memory, I will
len we will go upon the parole e?i-
"lapper, AVhen an officer has taken
wii in writing, it is of dangerous con-
to admit parole evidence to be given
ne things,
e do not insist upon it.
Lev. BIr. Eusebius William sworn.
r, do you know John Fisher ?
ns. Yes.
ail you any talk with him about £g-
5 bemg killed ?
m, f happened to be at Laleham,
1 the depositions that were made before
us Reynell: Fisher said, if he was
I before the justice, he would declare
^lestone had said to him.
'hat was that?
7». Fisher told me, that Egglestone
d not believe tlie gentleman killed \\w
Bignedly ; but that it was an accident.
you know how this young man Eggle-
ne from Staines to London, and who
he keeping of him since ?
w. 1 know nothing hut by hear-say.
^ereyou never at the White Horse in
ns. I never was there since this ac-
Mr. Betliunt called.
tapper. My lord, this is another
at IS brought to contradict tlie evidence
slone, in what he said witli respect to
00 of the gun.
crs^ Counsel. Egglestone said the
pointed downward. Now we shall
I, fitHD tlie nature of the wound, that
lorally impobsible it should be so ; for
id is slanting upwards.
James Betbune sworn.
ir, yoQ are, 1 think, a surgeon at
1: did yoo see the body of tnii Ug-
that was killed ai Staines f
xvn.
BcihuM. Ob Sunday, after the aecidentt
my lord, 1 happened to be aiLatehaVy aad
sir Thomas BeyneU gave me leave to come
in and liear the depositions : I was afterwards
sent for by Mr. Perkins, a surgeon at Staines,
to attend at the opening of the body belbre ihe
coroner ; there were several of the coruner'e
jury in the room. I found the wound on ihe
left side, about an inch and a half below the
ridge of the hip-bone : The wound 1 apprehend
to be about an inch and a half wide ; 1 foimd il
went into the cavity of ibe belly.
Q, Did the wound go upwards or down-
wards into the belly ?
Betkune. When I found it went into the
cavity of the belly, 1 reraeml>cred in what
manner Egglestone held the gun when be was
before sir Thomas ReyudI, to shew how Mr.
Annesley held it when he fired : 1 remember
very well be held it to his shoulder, slanting
downwards : I attempted to put my probe into
the wound, in the same direction as he df*
scribed the gun ; but there was no passagc-for
it in that position ; it would not go iu down-
wards : then 1 put it in, in this manner, cront
the belly, and it went in without obstruction,
and theu upwards, and it went in with the
same ease, in this manner, i observed several
large blisters, full ok' black serum on the right
aide, opposite to tlie place where the shot went
in ; the blisters, which were on the opposite
siile, were three or Jaur inches higher tlian
where the wound was : the wound was on the
left side, and the blisters on the right : when I
found this was so plain to me, I desired it
might l>e as plain to the jury, and every one
there, as it was to myself, because this war a
matter of fact, and not of judgment ; and 1 de»
sired the foreman to come ai^ put the prolie in,
and trv ; he did so, snd found the wound as I
have described it: 1 was the more careful in
this, because I had observe<l the evidence that
the boy gave on the Sunday, and there w&a
some variation between that and the nature of
the wound ; therefore 1 desired them to take
the more notice of it ; and said. Gentlemen, i
shall ha? e oocasion to speak to this by and bye,
and therefore I desire you would mmd what 1
say to you.
Q. What do yon think those bibters on the
other side were ocoasioned by ?
Bethume, I apprehend tliey were occasioned
b? the force ot the powder ; aud that if the
shot had jrone through, it must have come out
three or four inches higher on the other side
than it went in.
Seij. Ompper, According to your account,
could he, holding the muzzle of the gun up-
wards, have made this wound ?
Betkune. He could not have made it with
the muzzle downward.
Q, l>id you observe how the woiwd was
upon the bone, and whetlier tliere wore any
allot remaining in the wound ?
Bethune. No, Sir ; but 1 found some shot iu
the cavity of the 1 wily .
Mr. hrosrn. Now the queiliott isr *«r
4C
1123]
15 GEORGE IL Trial qfAnneslcy and Redding^ . [1181
the sliot, cominfT upon thii bone, might not be
thrown upwards ?
Bcthune, No; for the shot went through the
bmi^, BO that the gnn must have been held
oblioHflly, pointing upwards: the shot could
nut have gone through in that direction, it' the
muzzie of the gan had pointed downwards.
This is not nnatter of judgment, hut 1 hafe
gifen you demonstration of it.
Serj. Gapper, You say the wound went from
the M% side to the right, and that if the muzzle
of the gun was downwards, the wound would
be in the same manner ?
Btthune. Certainly, Sir ; if the muzzle of
the gun is held downward, the shot cannot go
upward.
Forttnan nf the Jury, He makes it appear,
that the prison er'could not hold the gun to his
shoulder, hi:t that it was held horizontally;
and that it was impossible for him to wound
him in the manner the bov has described, if
the muzzle of the gnu had been jrainted down-
ward.
Bethune, I beg leave to speak a few words
more to your lordship. While 1 was giving in
this evidence before the coroner and his jury, if
your lordship remembers, I said I had shew-
ed them how the wound was; therefore I
desired ihetn to consider, how consistent it was
with the evidence that Mr. Egglestoue had
g;iven : I believe I proved it to Uie coroner's
jory, and others that were there, that it was
impossible it could be done in that manner, if
the gun was held, as he said, to his shoulder ;
upon that he comes up again, and, says he,
The gentleman stooped when he did it.
Counsel for the Prisoner. This shews how
lie departed from what he had said; for he
said (jrst, that Mr. Annesley stood upright
when he fired ; and then that he stooped, in
order to make his evidence correspond with the
wound.
John Perkins^ Surgeon, sworn.
Q. Did you see the body of Thomas Eggle-
stone ?
Perkins, I opened the body on the 4th of
May, and, on iuspection, I found one wound
about an inch and an half diameter ; on the
lower part of the \e(i side, it passed throuirh the
spine of the os ilium, about an inch and a half
below the ridge of the hip-bone: I put iu my
Iirobe seven or eight incnes, by which, and
ikewise upon inspection, i found it run horizon-
tal, a little upon the ascending. I put my two
fingers into the cavity of the bone, and shewed
the jury how it was ; and observed on the con-
trary side four or five blisters, which 1 think to
be occasioned by the force of the powder from
the other side ; but the shot did not go through
the skin.
Court, I ask you, whether these blisters
were higher or lower than the wound ?
Perkins, Four or five inches higher, my
lord.
Mr. Broscn, Do you think tliefc blisters were
•eeasiiiMd by the shot?
Perkins, I apprehend they were, beetnc
there were no other blisters on any other part
of the body.
Mr. King, the Coroner^ called again.
Q. Was any application made to yo«, at asy
time, to send Mr. Annesley, a prisoner to New*
gate?
King, Yes, I think it was Mr. Giffiud ; be
came along with another gentleuiaDy whsie
name, I think, is Carrington.
Q, What, captain Carrinfftoo ?
King, I believe it was : I said, I think the
gentleman is secure enough (there was a M
mentioned, but I cannot remember that he wu
named : Mr. Giflard wisely kept him from say-
ing who it was ;) I thought it was too sevcte'li
send him to Newgate ; and said, that sir TV-
mas ileynell was the justice of peace «b
committed him, and he had takeo sofficial
care about it.
Paul Keating sworn.
Q. Do you know any thing of Egglataser
Keating, Yes.
Q, Where did yoa come acquainted wiib
himP,
Keating, At the White Horse in PicodOIj.
Q, What countryman are you ?
Keating, I came from Ireland on bssrii
merchantman from Waterford: I wasreoea-
mended to the earl of Anglesea, to say vbul
know as a witness about the estate.
Q, How came you to the White Honef
Keating, There was one Lawler, that earn
over in the same ship. When I came totov%
1 went and enquired for him at the earl of Ai-
flesea's, and he seut me to the White Homii
Iccadilly to live, and there I came aoqusislid
with Egglestone.
Q. Alter your acquaintance, do yon retscS'
her any conversation with him, about wbalki
was to have for swearing in this cause ?
Keating. 1 do, my lord, remember might
well ; a little time alter he came to the ioB,lM
and 1 got acquainted together, and went oat i
walking to see the town, and particularly os a
Sunday morning ; the Sunday dfler he csBi
to Piccadilly.
Q. What month was that in ?
Keating. In the month of May : I beliert il
was the second Sunday in May. As we wet
walking abroad, 1 asked him now he osoae H
live there ; says he, I am here at the espCBCt
of the earl of Anglesea.
Court. This is not proper: if you can cal
any body to contradict Egglestone yoa maj ;
but this is reflecting upon a noble pcnosli
character.
Q. Did he tell you how he cane to bs il
that inn ?
Keating. He told me, that Mr. Williaaii
who keeps the White Horse, brought him fnm
Staines ; and that he should be very well pfv-
vided for, if he wouM prosecute the gmlls—
%vho is now in custody for this norder ; sad he
desired 1 might soatrive aonie way thsl fet
\
f.^the Murdernf Thomas Egglatone. A. D. 1742.
low came lie 1o lake copies or tliem '
ng. Because I ilid not ca\e my lianil
lie knaitn. I h««e a copy of one of
raypockei. [Itnds.]
upon tbe lOlh day uf Juae oext, llie
r 90al. tlerlJng, for value received from
«eflse*I fitbcr anit hini in cnrpenter's
&c. Witaesi my han<t this loili clay
r, 17*1.'
Wta to be Binned eilber by WillJams, or
lAnglcM*.
leyon know of tuy discourse nilh Pa-
uner?
j^. Yes; he i« my lord Aogletea's
■are you erer leeu ihe ci
le WliiteHoTEe:'
'tng. Heis tbereoAen.
'hat, baa tlie earl uT Aofflt
«e-
toy thiog
Hit cotcb and barees are kepi
Baw long bave tliey stood there ?
mg. They atand tliere coDsuatly.
GepftT. IV hat TTas that note for?
inf- It ii only a copy of what 1 wrote
itwtone; for, as I told the Court hcfore,
Aoft that loy Land should be aeett ia
ih tbiog ss bnbery and corrruplioD.
Capper. Where ims lliis note signed ?
ing. I cannot say nhether it was sijj^ned
be Utlil me it iras to be signed.
Did not you put this into Egglestone'a
ing. No, upon my oalb, I did nol.
Braam. Did not you receiTe money to
■wberc, Olid you and he went and Epeot
ney ?
Mf . 1 received a crown to go tu Wool-
low came you muI to go to Wootiricb ?
out. 1 litd not a miuiTio fu-
Gapptr. 8o vou had a mind to make
lOtM dnmk with this crown i>
iflf. That ia a diflerent case.
)id not you treat him P
*«. Yes. I did.
VM reMoa bad you to treat him P
Jnj. Because be had no money of his
for the prisoners bung^ ^ne
Iba jury should be of opinion that
' off by acoidenl, tb< bomicidc
lit, in point of hw, be either maiislnughler,
chince'medlry : I shnuld be chtd, in that
cote, la make it chanoe-ranHey ; hul, in order
In thnt, it iTKislappesr, that what Mr, Annt^tey
wns dain^ was |)erfectly lawful, olherwise ha '
will lie^piiilty of manslaiichier.
acls of pnrliamenl made for the preserta .
the game, authority to seixe the deceawd, wha
was clearly aclini; in riolatioQ of thuie laws,
Bui it is doubtful whether tlie aulhorily of a
gnmc-kceper, being perRonal. Ihe other prisoner •
acted lawfully in assisting him. '
The SrssTuicE of the ABGuncND by tha -
CiHiDsel lor Ihe Prisoner*, tiz. Mr.
Uume Campbell, Mr. SerJ. Bayward, :
3fr. Clarke, Mr. Wyrley, and Mr.
Smith, was as follows:
My Ford, ulihough a game-keeper's Butho>
ly be personal, we submit to ynur lordship, '.
that, am ihe deceased was conf>;s»edl^ doing an '
unlawful acl, Mr. Annesley's catcbmg at lb«
string of the net, which Ihe deceaifd had '
thrown awai^, and which mig-hl be only to pre-
falling into Ihe water, was iiul such >
trespass in him, as will alter the nature of Ih*
consequence, and make that roanslanijhler,
wliicb appears to hafe been, in tad, a luohl u»-
Ibrtunale accident.
humbly apprehend, my lord, that it if
not necessary, that the act Air. Annt^ley wsa
about, when tbe accident hap|)«ncd, should ba
strictly 1^) ; if it was an act of an InditTcrent'
nature, not an unlawful one, wc hope it will b« '
sufiicieni to excuse him from the guilt of man-
slaughter.
Jfa man throws a ttnne into a place of pnb*
lie resort, and kills another, Ihat will be uisn-
slaufj'hter, because the acl itself was unlawful,
supposing Ihat dismal consequence had not
followed it.
Bui if a man it playinr at bowls, and unde-
signedly kills another, tliere, us tbe first act
was of an iudifltrent nature, the law will not
impute the accident twusequeotial to it as a
As to Sft Aoneslcy's entering ihe close lliat
belonged lo Sylvester, wbalerer it roiKht be
with r«ganl to him, it was on acl of an iodif- •
ferent nature wiih respect lo Ihe deceased, wh»
;laimed no proi>erty in the ground, and m
i no more right to be there than Mr.
intess you will suppose him to hart
had the owner's cooseni, which, as il
Crated, may and ought, with eiiualjUB
e supposed in favour of the prisoner.
The young man's evidence being put out oC,^
ihe case (and considering the maoner in whiclt ^ j
he contradicted himsell, and bos been contra* •
dieted by others, what he says, we auprphend, J
ought lo slnud fur nothing), Mr. Anne>ley*4 > J
acl appears to he no more tTian ainnping tn - -'
veiltllic siring of the net from falling in(<
river ; in doing of which, suppose a. qtitul Iv
gone tjff in \v\ ^^V«!i, <nim,V& V — ' ^""
entty hai
inesley,!
11S7]
15 GEORGE IL
TruU ofAnnesley and RidtHngf
[1188
hardest case id the work), to sa^ thai this acci-
dent should make him cruilty of manslaughter ?
Bat allowing it necessary that the ad Mr.
Aonesley was doing must be lawful, we hope
to shew your lordship, that Mr. Annesley's in-
terposition in this case was so.
There are two acts of parliament relating to
the game applicable to this case; the one
made in tiie li^d and SSd years of Charles 3,
cliap. 26, and the other in the 4th and 5th
years of William and Mary, chap. 23.
The first recites, that divers disorderly per-
sons, laying aside their lawful trades, betake
themselves to the stealing of conies, hares,
pbea^iants, partridges, and other game, with
uels and other engines.
For remedy whereof it enacts, That all
lords of mani»rs may, by writing under their
liando and seals, authorize one or more game-
keeper or game-keepers, within their manors ;
Vfiio, being so authorized, may seize such nets,
or other engines, as shall be used by any person
or persons prohilnted to keep or use the same.
Then it recites, that divers idle, disorderly,
and mean people do betake themselves to tne
stealing of fish ont of ponds, and other several
waters and rivers, to the great damage of the
owners thereof.
Therefore it enacts, That if any person or per-
sons shall use a casting* net in any rrrer, &c.
without the consent of the lord or owner of the
MHd water ; and being thereof convicted before
any justice of the |ieace, shall give the owner
such satisfaction (not exceeding treble damages)
as the justice shall appoint, or be committed to
the House of Correction. And that it shall be
lawful for the justice to destroy all such nets,
or nHicr engines, wherewith such offenders
shall be taken or apprehended.
I'he other act of parliament recites. That di-
vers good and necessary laws had been made
for preservation of the game; notwithstanding
vhich, or <(M- want ol'llie due execution thereof,
the game hail been very much destroyed by
many idle persons, who af^erwtirds Make
tiiemselves to robberies, burglaries, or other
like ollVnccif, and neglect their lawful employ-
ments.
For remedy whereof it enacts, TlUt no per-
son or persons shall have or keep any net or
eiigine for taking of fish, except the owner or
occnpier of a river or tishcry. And that it
shall Ik? lawful for such owner or occupier, and
uil and every other person or persons, by him
(HT them for tiiat purpose appointed, to seize,
detain, and keep, to his and tneir own use and
uses, every net or engine which they shall find
used, or in the custody or possession of any
person or persons whatsoever, fishing in any
river without the consent of the owner or oe-
oupimr.
Mow tb« qacstioD which your lordship puts
«#y t» to argue, is, Whether a person duly
undar these acts of psrliament,
in th» eaecation of liii ofiice,
"^^otiMrpefSQBto hU assif*
Year lordship will consider we areargnng
in favour of lite, and therefore will constme
these laws in the most beneficial manner for
the prisoner, tnd the rather, because such con-
struction will tend to put the laws themselves
in force, which were intended for seen ring nea
in their property from the violation of idle aad
disorderly persons.
These acts suppose the ofTeodera to he des*
perate people ; ror it describes them to be such
as afterwards betake themselves to rohberiei
and burglaries ; and likewise supposes (what is
also true in fact) that they go in numben to
destroy the game.
That circumstance seems to imply, tbtta
gfame-keeper, or other person duly appointed,
mav» in such cases, call in other persons to bit
assistance.
To constme the law otherwise, weold render
it inefTectoal ; for it is absnrd to suppose, that
every lord of a manor, or owner of a fishery,
shouid appoint as many game- keepers as there
may be fiersons incKned to invade itis propertr.
This would entirely tend to defeat the secwiiy
intended by the law, and therefore can never
be agreeable to the meaning of the legislator.
As these are late acts or parliament, it cu-
not be expected that we shoitltl pvo«Hice cssei
directly in point, and resolutions of the jodgis,
oo the censtmctwn ef those acts iu this tfaa-
tion.
But suppose, upon some of the acts of psr*
liament made against smirgglers, an efBeer of
the revenue, or at the common-law a constsMe,
being resisted in the execution of his office, calls
in other persons in the neighbourhood to hk
assistance, and mischief or death ensiiei;
might not those persons avail themselves of ibe
authority vested in the officer or constable, so
as to be justified in what they do, i\ii' themsni-
fest sup|M)rt and execution of the law .•
A man has undoubtedly aright to drive awij
cattle, which he fimli daiua^'e faisunt in bis
ground. Suppose then he should dem •
stranger to assist him, co«aid the owner of tie
cattle maintain an action ogainst the stracger
for the trespass iu driving his cattle ?
Suppose, in the present case, the deceased
had not unfortunately been killed, and htd
broocrht an action againit the prisoners for so
assault, might not the defendants (one of which
was game-keeper) hare pleaded speciallv, s»d
justified under the act of parliament!^ AtA
surely, whatever in pleading i^-ould have ben i
justification in such a case as this, will beassf-
ficient excuse.
But we apprehend, that in all eases wheretbe
law makes offences punishable by justices of
the peace, whoever sees a person coromittid^
snch an oflfbnce, has a riglit, without any spe-
cial authority, to take him up, and cany hiOi
together with- the instrument of his ODenee,
before a justice, in order to his conviction; and
that whatever is neetssary for this pnrpose if
lawful.
If this was not hw*, ofRhiders would, in nM
cases, escape with inpuMty; Ihr, observisp
Jiir tht Murder of Thoinas Eggieilone.
A. U. 17+«.
ttrannrtTn ta be diacof rrfd, Ibfj wnnM hanlly
■tB* till lli« DbstTTCr could Ksorl Id a proper
■iiiborii^ : and, lieinB: mean anil unknown pn-
anat, miglit narvr allnirarilB be rbunil.
Eteti Ihej'uuDg; man wLowai bo rvry far-
mm tn Eji'iog his eriiltner, ailinits that bia
lidber aed he wtre acliially tisbiii^, that ja,
eaminittiDg an offence against iheae acts of
parliantrat ; thai Refilling, wbii bad a legal
anthorily, came up first to lite HcneBsrd, and
dnlMHlded tbenet; Ibat ifacdeceaied refn^eil lo
driiferii; anil thai.whilatthcy wer«alrugg1ing
lirthe act, Sir. Anneslpy came ujiandanaicbtS
atil.
Ufiou Ihe whole, we hope Mr. Annesley
WM well warranlnl to go to Reddriig's Bssht-
aaue; nnit iliut llie uiiliapiiy acciilent that lell
out at llial lime, shall [ict be im|niied \u him as
a et^ma, bat construed to be no more than
dUBoe- medley.*
The Substance of the Abguhcnts by the
Couuxel for ibe I'roseculnr, viz, Mr.
Bcrj. Gapner, Mr. Serj. Wynne, Mr.
tii»«n, and Mr. Johusmi, was as fo)-
Mjr lord, the counaci for the prisnnvra have
BtrfcrtakeD to juslify under t»a acta of par-
liaiDent.
Aa Ui lh« nd and ^3i arCbarles 3. ne beg
leare to uliwrve, that ibc cbuse eropoweriog
hrda of maoors to afipoini gante- keepers, whu
aaUitiritjr to aeize imU, dnes not extend to
fiahcaica. The clause which relates to iishing,
•nlj iTiretrta tbnl the oHendera nliall be punished,
■pmi 0011*1 ctioD, btifure a Justice ef peace; bnl
4m* mm etDpower any one (a seize either then
•r tItMr iM*. 'I'hc regular way, ondonbleilly,
i* tt lay a conijilBiiit lierore n jaslice ot' the
pa»M, who is to grant liis warrant lor appM-
MndiDg Ihe olTender, and then, upon conviction,
b* naydcitray Ibe net. Iteaidea, it was sworn
hf oUl lUddinK, that lliis was liis fishery ; if
aa, air John I>olben hnd no authority at all to
■ppoinl a game- keeper to take care of it, aod
eaweqitCBtiy, even the deputaliun itself is Toiil.
Bat if it was not void, yet still the power is
ptfaoual, and cannot he ilelcguled lu another,
anil ttwrefore caddoI aerre lo exouse Mr. A-a-
aaaley, who ajipenrs |li have acted iitliciouBly,
wilbout bring calted tipon by aoy body.
As to iliF iiiber act of parliament, the 41h nod
SIta or William aai Mary, Ibot no ways relates
to gainG-ke*per» ; but only empowers IliF
Manrra or oecirpten 0( llaheries, ar pnmas by
ihcin fur that pnrpnse appointed, to Knze Ihe
net* ; ao ibat this power is confined to old Ited-
fling hinuH.'ir,and it ilnes not B|i|>car he has a^i-
KiMad nther of the nrisoncrs ; and there-
tan, a* they had no auliiotity at alt, they were
:, anil roast autwer fur the COUe-
M
• SscLeaafi'tHavrkins's pleas ofibeCRiiTn,
haiilc I, c. 99, t. tJ. Sfi* also, as lo (be que*-
lias Uere maifr, the olntrvatitiQS in Eut'* 1*1.
^rt».ft.i-ar.
As to the liberal consirticiitin of the adU of
pHriiameat, wiiidi ihe gciitVuwn coblend for,
we say, thai, at the cumman law, every man
had a right to lisli in riters; and consequentlJT
those siHinies are an abridgment of the common
law, and therefore to be (Iriclly construed. By
the came rule of eonslrnciion, which they i»-
Giit upon, any man may claim a right lu come
every day, and search anotber's hmiie for nets
■III engines fOr destroying of game. Hot
(that nnrder*, besidea other inconvenience-',
must he the conseoucoce of auch an onlimited
Iiower, we leave all the world lo judge.
We admit, that this is a new case, and there-
(bie Ibe cases put of a constable, whose office
is as ancient as any in the kingdom, are by no
means parallel. We iiiaisi, Ihereliire, that Ihe
prisoners, at least, 9Tr. Annesley, having been
wrong-doers, mutt answer fur the consequence,
which being the death of one of his miijcsty's
Bubiecti, make tbeiD guillv of innnslaiightef,
supposing the gun went off hy accident.
Then Mr. Hume Campbell said in reply ;
My lord, I beg leave to trouble ynu with a
few words, on behalf of tile unliappy gentleman
who stands diai^*d before yoo w'itfi a crime
Hhich affects htt life.
If that cnnseiitience was Ihe motive for the
charge, be may rely upon the justice of this
conrt OS bis security; to your justice he ii«i
siirremfered hhiRelf, and eqoally trusts in (bat
and Irisinnocence.
In argftihiK the point now before (be Court,
I m«y talic it for granted, that the gun went
offfcy accident, witliont Mr. Anneslcy'sknot**
tng il; and only consider, whether bis inier-
posiug to assist Redding was or was not lawful.
My lord, I take it I'nr a general rule, that all
persona, on request, not only may, but are
bound by their duty and allegiance, lo assist
legTll officers in the execulion of their duty.
I shall not repeat any of Ihe eridence ; the
Cotn-t will remember, that a request of the
game-keeper's, or what amounts to sucb, hai
Lceu proved.
I mentioired the case of a consfable, which
the gentlemen of the other side etidcarour (ft
<t'i3lingui$h ft-om (hat of a game-beeper, by
aayinjr, that hli pDWer ia great, and ihil bil
office IS very ancietil. I aihoit bclb these po-
aitions : but iDsist, that his power does not arisA
Irom Ihe antiquity, but from the legality of hi*
A game- keeper is a legal officer, particularly
sppoiiiied under the acts of parliament fur (b«
Iireaerration of tlie game ; lie is for lUat pur-
pose fully empowered to put the laws, relating
ro (he name, m execution : nobody can lettatl^
I'cBist Him, and consequently ihedeceBneiranil
his son were doubly criminal ;flr«t, io breaking
Ihe law, and then ia resisting the legal officvr,
who came to put that law in force.
What did Mr. Annesley do in thUcaser Fl*
stooped to take up the net, which the deceased
had unlawfully thrown into Hie water, io on-
rtat the ^me-beeper tnitt n"""
1131]
15 GEORGE IL
Tbu a ipeeial autlMnly, my Ion), ii Dot ne-
cwHu-y in all case*, will bardly be dupuled ; ■
coiwlable, if Iba Utr U broke in hb preeenee.
EggMeat had ■bandoned it ; tncl will any
sue mainlain, tbat when a Ireipaner timwa
away the iotlrumeDtof his crime, it ia Hula trfnl
in anolher person to take it up? N^y, the aa-
■tatant of bim to whom the atalule gitea it f
Tfaey lay a man may •■ well go enrj day
into peO|rie'« houaea, nnter pretence of tearch-
ing n>r nela, Ace No, they cannot do that by
law : arery man's houM isliii caitle ; and the
law baa provided, that be thall not be moletird
there without aapeeialantbority. . Noriathwe
tW aame reaaon (br that, m there ia for «eiEiD|i>
vflendara in the aclani comBuanon of tbe of*
fence. TIm very case tfaey put, impljea the
ofibider may be fonnd and come at by ttie or-
dinary forma ; but is the other, he may not be
known, and will hardly «Uy till yon apply for
n wartani to q>preheo(l him.
So that the neeeaait* of tbe ihiug maket that
venaooable and lawful in the one caae, which,
fbr want of that oeceewty, ia not no in ifae other.
m... :.i -utlionly, my lor" ' — ' —
I, will hardly be
iwiabrokeinh ,
may, by virtue of bia general power, Mice cog-
nisanoe of the ofTenoe, and arreat the offender.
In the pcetent case, tbe game-keeper, who
ia a legal officer, and in natnro of a constable
Ibrthia particular purpose, (Bw tbe deceased a-
fiabii^, and consequently bad a right, without
any special wamut, to seixe him, and wben
letiatM, to call Mr. Anneeley to bia assistance.
It ia said, the acta of parliament are an
abridsoient of the common law, and therefore
•hould Ik construed strictly. My lord,noman,
by the common law, had a right to fiih in an-
Other's property. It was an offence at tbe
coQimoii law ; it is ' malum in se;' ind tbe
■lalulea, that bate been mentioned, only make
thnl uffeuce punishable by a justice of peace ;
as ihey lend iherefore to secure tbe property
which a man had at ihe common law, they are
an Bildition lo the common law, fixing a pu-
nishment fi-r the breach of law ; and taererore
lo be so construed, as will best answer so sa-
lutary an end,
l( it is B neiT case, as the gentlemen seem to
lay a slreas upon it, let us consider what wilt be
the cunsequcnre of your lordship's determine-
lion,if ■( should b(! against us.
The law, my lord, I apprehend, will become
vain anil idle ; for if offenders zet together in
any number, it will be impossible for a game-
keeper to restrain them.
Nay, my lord, tbe law itself will become a
■nare to all wtiu bare not (he act of parliament
in tlieir pocket, to tell ibem they must not in-
tcrfere ; Ibr suppose a persoa, legally apjiointed
under en act of parliament, going lo do his
duly, is resisted, can it be imagined that his fel-
lon-Berrant, bis neighbour, or bis friend, would
not ibitik bimseir Justified, nay bound to assist
him, when he aees his authority thus trampled
upon?
Mmoat, my lord, it could be only an impru-
dent act in Mr. Annesley to interpose ; but we
hope yoiu lordship will not construe it to be
Tr'itU {/ 4nnetley and Reddtngt
■Dcb an imlawful act as will ma!
[IIM
tiip wUI please lo obaervc, that it
depends entirely on the credit of EggtesUM:,
whether Ihia gentleouD did anylltuv or not.
Befureyour lordship du«clslhe jury aalnlhU,
it i* my duty to aoijuaiDt yonr loraibip, that
there is an indictment on the coraner'a inqniri,
and likewise an indictment on ihe black act,
egaiosl the prisoner Mr. Annesley.
Court. That is for shooting mafieiiMdy':
But there is no evidence tending thai way.
Serj. Capper. My lord, we deaire to call
some eridenu: to enppori the character of Joba
Eftgtestonc.
Q. For what ? We have calleil no witneit H
impeach it.
Court, Hare you not examined every wit.
ness that has appeared to tbeboj's cfaaradw.'
If you cnnid have called more, it is to be sap-
posed you would hare done it
Joli» Gardner Bwom.
Serj. n^nne. Do yon know this yeoaf
En;lestoue f— GnrifiKr. Yea.
Serj. Wynne. How long have yon kasn
him? — Gardaer, Seven or eight year*.
Serj. B^nne. Wbal is he, a* lo hia hoBSilj
and veracity ?
Gardner. He is like Other boys, ■ometnsM
good, sometimes indmrent
Serj. Wynnt. I do not mean as to a little os-
lockmeH: But do yon think, from fatsgcnml
behaviour, that he woold forswear bimsrifF
Gardner. No, 1 donutthinkthatbewooU.
Thomai Syhater sworn.
Serj. Wynne. Do you know this Egghstoee?
T. Syheitir, Yes, I have known him aboot
threeyears; helived by me ata boteher's-
Serj. Hynnr. What was he as to bis cbi-
BCterenil behaviour?
T. Syhttter. He iras sometimes idle ssA
given to piny.
Serj. Wynne. Do yon think he would ftr-
sweat- himself?
2'. SylwiifT. No, Idonottfaink hewooU.
Samuel SyhcUer called.
Seij, Vynne. How long have you koDWI
this buy ?
S. Sylvetler. I have known this boy a goeJ
while.
Serj. Ifyn.
do you think .._ ...
S. Syhetter. 1 have bail no
witlihim, so I do not know what he
William Palmer sworn.
Serj, Wynne, llorr long have you knon
Palmer. I bavp known him as long al I
have known any person of his age: He caM
of very honest parents.
Serj, H^ne, Do you think be vrould ftr-
swear himself.
J<ir Ihe Murder of Tlioinsi Eoalalene.
I do not tliiok fae would rorewesr
A. U. 17+2.
bimwir.
Q-V( .
much iiliticted to Ijing ?
Palmir. V/by.tiiilitaoUiV'mgiftlaeaatiu
Patrkk laaler sivorn.
Serj. \Vj/nne. Do you know Paul Keatinfcr
ZoKler. I liaie Luowd bim crer lincc the
IStb of MatfM laaU
Q. Wbnl w hisgencralcliaracterr
laaler. I tlo not knuw bit general oliarac-
Mf; but I knuw lie lias )>cbitted very baiJ of
Q. Di>l
op 01
nil uever oRl'r tiini any monpy to
the iToy, nnti not ai>j>ear at tliU
LaaUr. No, not I ; bnt lie uid he noald
gire them ft Konlnnil Ibr their OliTer.
Q. Doyon know nhat bemeant by IhatF
IjoaUr. No ; only lliat be saiJ it my loril
Anglesea iliil nut give bim money, he tTould
tiini eridence i>u llie oilier side.
Q. What did vou iliink he meant, wben be
(aid, if my lorJ Anglescn did not sire bim
BODfy. lie would turn eridence on the other
jidef VVhy surelv my lord ii< not concerned hi
ikii prasecutiuTi f But P"y, Sir, you biife
^TCn & bad account or Mr. Keating;, hoiv
«une you atiil be acqasinteJ ?
XiMvicr. This KeaUujr and 1 cimc oter In-
ftethn tram lielaod in tlie same ihin ; he told
nS) there were some eridtocea on toarJ that
were taming over to swear away my lord An-
^ncn's eslato ; tud he, there are Ibree wonien
moA two men, and I have discovered Ibe whole
thtnif, bow tliey are bribed lo come here ; and
if 1 come to Loudun, saiil he, 1 nill giiT my
lord Angleteaan account orii.
Q. Pray, Sir, tell u« what became of Keal-
Isor wfaen he came to town ?
Xav'^r. Soon after be arriFed bo found me
not, anil an I told Mr. Jam I Ihouj^ht he mi^ht
4>pmd noon ihiH msD, becnuse 1 bad seen bim
in Brtflot ; said I, I speak to you ubout ibb
moB out of charily ; for he Is Tcry poor: then
■kfi Hr. Jans, t^t bim go to the H'hiie-
Eiorae in Pic^odllly ; anil then he iTBDied
d«tliM ai'd money ; and, taya he. If (hey do
Mt give me clothes and money, 1 »ill swear
Ihal tbc earl of Atiglesen wns to give a note
WynunE t'^^teilone lu swear u|ion tbi" Irial.
U. What do yoit Ibink he mehiit by his
aiiOliverf nbeltier il
ir related to my lord An-
r»'«
. Row land
Lmitr. I CI
letl what he mtatil.
E«ll(«ncn of the jury, tbc prisoners at the
iamt* Annntey and Joseph RedtliiiK,
indicted for the wilful murder of Tbo-
WU Ec^lmKiDe, by ciTinir 'uoi one wound ou'
th* li>fl-iiidir of ifae belly, in the pariah of
1, (if which be inalnhily died : Ibe m-
»HB>,- tot Annisley fired ihe
gon, and gaie the wound, and that ReiMing
wax asaiitiug and abetting bim in Ibe doing of
ind ibey stand a second lime indieieil on
coroner's inciueat for the same [nurder;
there is another inJicimeoI agaiiul th«
prisoner Anneslev, for fploniouBly, will'ullr,
and maliciously sboolin^ this man, a^inai lb*
BlAluteof the ninlh of king George the Hist.
The first eridence that is called by the prose*
color is John Eggleatuoe ; he says bis f.iibeP
" ' 'le went a-lisfaing up the river, till iii,^j
! lo Samuel Sylvester's ground; Ibal ibey
I net, and the string of ibe net was about
hii father's arm ; that when they gol abant
tbc middle of the field, they saw tiie nrlsonera
coming up ; that Redding came up hrsi, and
' 10 lay hold of the net, and bit fslheC
V the net into the river, about two yards
from him ; and that Annesley ibeu came up
andaaid, Damn your blood, ilelivei" your net,
111 are a deadmao, and fired dii'eclly : anil
Iha'l be shot him near the bollnm of the belly
on tbe len.«idc; that his fatlier said. Yon
rogue, Hhat bare you done? I am a deed
man ; that be^tbe witueis, took a knife out of
bis pnehel, to cut the string of Ibe net from
his lather's arm, and leaned mlo the river, and
dragged (be net lo tbe other side of Ibe rirer J
and that Atinesiey said, The rogue has got
his net, let ua go on (he other side ; that be
taw I^elleiwortb, Tisher, and Bowles, on the
other side of tbe tiver, end told them he be-
lieved hia father was dead ; that they came
over tbe river, and advised him to get a sur-
geon ; upon wbicb he went to one Charles
Cole, but he diil not cnme: that then be went
for Ruasel the oonstable, to search liir the pri-
simers, and says they found tbe prisoner An-
nesley in a place about five or aix foot above
tlie floor, in an out-house, upon some rubbish ;
that tbey carried him lo the Round-house ;
that lie &iaid there all night, and ibe next day
lliey carried him to Hounslow : he says tba
gun ^vas cooked, but be cannot tell when he
cocke<l it : be says sir Thomas lleynell came
into Uounslow while tbey were there ; and
ttiat by his order tbev went to tbe Grey-
hound Bt Laleham ; nnillbat one Lane, Che»-
tor's son-in-law, offered him lOuf. a yesr ;
tliat Mr, Annesley said he had not iOQl. ft
year to give bim, for lie had more lo provide
Ibr; but be might have 50[. a year, if hft
would not come against him : he said be bad
no conversation wi(L one Duffcll, but Ihal h«
bad with Daltoo ; be says, he bas sometime*
dined at Williama's table; and that he did not
Irll Paul Keating be was to have iOQl.
Tbe neiLt wilnesa that ia produccil i* John
Betleaviorlh ; be says, that Eg^lestone and hia
son were in Sylvester's ground, on tbe other
side of Ihe river, and be saw the pn'aonen
come nut of Redding's ground ioto Sylvester'^
and when ibey were in Ihe middle of iba
Sound they ran after them : he aays, JoMph
adding wa* loo nimble for Eggleatone'a
father ; hut whether be had bintXi^ ToAwNns,
he cannol \vj : \» nk-p. *vx\ 'ft^* ^p^-<r—
1135]
15 OEORQE II.
Trial of Annedeif and Redding,
[I1S6
off flooo afUr Mr. Aoneslfy canie ap to old
E^glestone : be says, be saw tbe smoke aod
fire of the |^un ; aua cavie up soon aAer Eggle*
stone's father was shot, tie says, he and
Fisher, aod Bowles* crossed the water ; aod
Uiat Aonesliey aod Reddine rao away ; that
IBg^teatoiie was not ouite dead when he came
' over, but was not able to speak ; and says,
he saw the net on the other side of the river :
he says, there was a place in a wash-house,
about six foot from tb« sfround, and there they
found Mr. Annesley ; that it is a place where
they pat hoops, and other rubbish : he saj^s,
that when Mr. Anuesley was taken, he said,
be wished to be killed, for being instramental
in the taking away an innocent man's life.
That about half an hour before this accident
happened, he saw Mr. Aunesley offer to shoot
at a crow.
John Fisher is called next; he says, he
saw young Redding in tbe ground wiiu ano-
ther man ; but cannot say that Annesley is the
man ; and that he saw there, two men running
after Egfflestone and his son ; that Redding
laid his uand, he thinks, on Eggle&tone's
ahonldcr ; and there was a sort'of a scuffle be-
tween them ; and he that carried the gun car-
ried it in a furm to shoot ; and he that carried
the gun was very near Eggle^toue when the
gnn went ofl': and he says, he saw Joseph
Redding, and the other man, go away ; and
lie says, he was at this time 169 yards off. It
■eems the ground has been measured, and that
is the reason they are so particular in it : he
says, Egglestone had money offered him in
his hearing ; he would have had a hundred a
year; but Air. Annesley said, he could not
give him an hundred a year, for he had other
people to do for : but he would give him iifty ;
and that Egglestone afterwards said, he would
not sell his fsther's blood ; and he said, that
Egglestone ai'terwaids told him, he believed
the gentleman did not do it wilfully ; but that
the boy, being afterwards asked how he could
s>vear against the gentleman, when he had said
he believed he did not do it wilfully ; he said,
he did not remember any thing of what ho had
aaid to him ; and he says he has been in the
same story ever since iiie accident happened,
excepting that one time.
The next witness, gentlemen, is Samuel Syl-
vester ; and he says, when Mr. Annesley cumc
out of that place where he was found, he
trembled very much : he says, he tents this
iandof one Sanders, who took it of Rcdding's
father : he says, Egglctitoue used to work
sometimes witli his father in the business of a
carpenter, but that he has lived some time at
the White Horse, in l*icx:adilty.
This is the substance of the evidence fur the
prosecutor.
The prisoner Mr. Annesley, in his own dc-
fcmce, says, tliat he is very sorry for the ac-
cident tittt has happened ; that these persons
were poaching in the manor that beli>ngs to
■ir Jqmi Doiben ; tliat they did go up to them,
lui/ tiut^on cannot suppose ha had any spite
\
against a man he never saw in bis life ; be nys
that he had a gun in his hand, and that the
gun went off by accident. l*he other nrisooer
Redding says, he is gaine-keeper to sir John
Dolben ; that he saw these men fishing, and
went to take the net ; that he heard the gnn
go off, and saw the man fail down, and then
be said to Mr. Annesley, Lord blcM ne, I
hope you have not killed the man ! and that it
was done accidentally.
To prove their case, they called the follow-
ing witnesses. The first is,
Mr. Staples ; he says, this is sir John DaW
ben's manor, and that he has held courti
there.
The next witness, gentlemen, was Thonui
Burlini;son, and he proves a deputation of tbe
second of July 1741, from sir John Dolbca to
Joseph Redding the younger, and thereby he
is appointed his game-kec{ier, to seize the nets,
&c. of any person who shall destroy any game,
or fish, in uis manor ; and in the book wLidi
is kept for the entry of these things for tin
county of Bliddlesex, it appears that the eniTT
was made the 129th of January, 1741, wbieb
was before the committing of this fact.
Then Redding, the father of Joseph ESed-
ding', is called, and he says, the fishery beloosri
to sir John Dolben, who is lord of the maoor;
that he lett the ground culled Hare Mead to
Sanders ; and that the same is now in the pos-
session of Sylve.<(ter. That he hinaaelf iraiiD
Chantry Mead (which is next to the Hire
3Iead) when this accident happened : ibal
when he came up to theai, his son said, be
was afraid the man was killed, and asktd An-
nesley how he came to do ilP To which An-
nesley answered. He did not think of tbe
gun's going off; he says, they seemed fcrr
much troubled and concerned : being vkA
the position of the gun when it went otT, be
says, 31r. Annesley held the guu iu onebiotl,
and that it hung down by his side.
The next witness, gentlemen, is William
Duffell ; and he says, that some hours afUr
the aecident happened, John Egglestone came
into his house ; and the man that brought bim
to his house, desired him to speak the truth;
and the account the boy gave at that time wai,
that Redding came up to his father, and de-
manded the nit, and that his father said be
should not have it, and threw it into the rirer;
that then Mr. Annesley came up, and tbegui
went off, and his father was shot, lie sajs,
that Abraham Egirlcstonc particularly asLeJ
the boy whether he saw Mr. Annesley pull tbe
trii>ger of the gun? And that he said he coutJ
not tell ; that then he asked him if there were
any words between them? And he said, No;
that then this witness said, it was a snamie
thing that Mr. Annesley should shout bis
father, and have no words ivith him : that beinl
asked in what manner the gun was held, fSr
glestone, with a stick wluch he had in bk
hand, shewed them in what manner 3Ir. Aa-
nesley held the gun : he snya the stick wasii
his hand, hau^iug down by his aide. He iaj%
] ^ the Murder of Tlumuu EggleUotu, A. U. 174'2.
[IISS
^gglettoue theD was asked, if be thought
iey did it tvilfolly, and ihat he said he
not tell. Bcint; asked as to the boy's
;:ter; he says Ke lias but an indifferent
:ter, that be cannot speak in tlie praise
I, and has beard bis Either often com-
)i him.
! next eridence is John Daltno ; and he
that the next day after the accident, he
0 Lalehara, and there ^\ifr\is%\xiu^ told
le believed it was an accident, and not
lesi^nediy. He says the boy has but an
rebt character, but behoves he would not
rar himself.
: next witness is Uichard Chester, and
,s, ihat be asked the boy at Laleham,
er it was accidental or wilful; and that
1 he believed it was an accident; for he
t believe any gentleman, in cool blood,
designedly shoot another ; he says he
whip in his hand, and desired £^:gle-
;o shew him how Mr. Annesley held the
ihat he touk the \%hip in his hand, and
J him ; that he held it in his bund,
ig down by his side ; and he says he
^gglcstone speak to Mr. Annesley ; that
Kik hands with him, and drank 'a glass
le, and said he did not think he did it de-
Paterson was then called to prove what
y said before the coroner ; but his ex!i-
on being taken down in writinpr, 1 did
ink proper to allow of parole evidence.
n Mr. King the coroner was called ; and
Mluced the minutes of the depositions,
the 4th of May at Laleham, before the
t. The minutes have been read, by
it appears that Egglestone deposed, that
father and he were tishing in Sylvester's
], Ke<lding came up, and laid hold of his
, and demanded his net, which his father
J ; that then Annesley came up and
* Damn yuur blood, surrender your net,
I are a dead man;" that he held up his
igaiubt his slioulder, and shot him di-
: and his father said, ** You rogue, you
hot me, 1 aiu a dead man." And, gen-
I, his deposition before the coroner like-
ly s, that when he saw his father was shot,
k bis kuife, and cut the string of the net ;
at then Mr. Annesley went to strike him
head, with the butt end of the gun. And
cars in his deposition, that he was not
I any money by any body. Then they
:ed Mr. Eusebiijs Williaius, and he say»,
Fisher told lutn, that John Kg;>lestone
id he did not believe Mr. Annesley killed
ber wilfully, but that it was done by ac*
*
Q James Bethinie, a surgeon, is pro-
, and he says, he saw the body ; that he
lied and probed the wound ; and he says
an inch and an half below the riduc'of
) bone, and an inch and an half wide ;
at when he put his instrument downwards
lid not go m ; but it %vould go in when
«be was put upwards, or cross the b' lly .
L. XVJJ.
The next wituess is Joliu Perkins, a surgeon :
he says be opened the body the 41 h of May, to
be inspected by the coroner's inquest; and
there was a wound aa inch and a half diameter.
He put in his probe seven or eight inches, aud
found the wound a little horizontal, about an
inch and a half below the hip-bone; he says
tliere were blisters on the other side of the boily ,
and they were four or five inches higher than
the wound. Mr. King says, that Mr. Gitiard,
who is the solicitor in this prosecution, made
application to him to commit Mr. Annesley to
Newgate ; but he thought that was too severe,
as sir Thomas ItcynelT was a justice of the
peace, and had taken sufficicut care of him.
Paul Keating says, he liecaiue aoquaioted
with Egglestone at the White Horse iu Picca-
dilly, wliich is kept by one Williams ; and that
he, at Egglestone's desire, drew a note of 200/.
for him, and that the boy, Egglestone, took a
copy of it.
Gentlemen, this is the evidence given in be-
half of the prisoners; and there has been evi-
dence given to support the character of JoImi
Egglestone.
John Gardener, he says he has known bim
seven or eight years,^— tliat he is like other
hoys, sometimes good, and sometimes indif-
ferent, but he does not thuik he would forswear
himself.
Sylvester was called again, to Egglestonc's
character; he says, he has known him aboui
three years, thathe was sometimes given tf*
play, but Lelieves he would not forswear him-
self.
William Palmer says he has known bini
from a child, aud does not think he would for-
swear himself.
Patrick Lawler says, he has known Paul
Keating since the 18th of March ; that because
he could not be supplied with clothes, as he ex-
pected, he was to swear, tliat the earl of Angle-
sea was to give a note to young Egglestone.
This is the state of the evidence on both,
sides.
Now, gentlemen, you are to consider, whc-
tlier the fact is murder, manslaughter, oi
cliaoce-metlley : murder, gentlemen, in point
of law, is uhen a person kills another with ex-
press malice and design, or with implied ma-
lice, as when it is witnout any offence or pro-
vocation ; but if there is a sudden fray, and in
that fray and heat of blooil, a person'is killed,
that is manslaughter ; now there are several
things in the course of the evidence proper to
come under your consideration ; you will ob-
serve that hgglcstone swears Mr. Annesley
said, *' Damn your blood, deliver your net, or
you are a dead man," and that immediately
the gun went off, and the man was shot ; if he
let the gun off designedly, if this was the case,
though on u sudden, he om be guilty of no
less than manslaughter ; but thru you will con-
sider what diifertnt thin«j;s the boy has said ; be
has declared several times, he did not believe
he did it designedly ; and according to what
ilie Kur;/ 1*0 us say, it i\i u«\.v*a>Vj*VArV>wR'»^'*'^
4D"
J 139]
17 GEORGE II. Trhl tn Fjedmenl hehUen J. Anntdey^ aq. [1 140
this wound could be gifen in thesitaHtioD lie
•mjr'fl Mr. Annesley was in ; for the wound
goes upwards ; and it' he held his gun as the
^ oy has said, the wound could not have been as
It is : besides that, he is expressly contradicted
in the fact itself by old Reddinir, ^ho swears
he saw the gun go off, and that it was hangioir
by Air. Anneoley'sside. Gentlemen, as 1 said
before*, the question you are to consider of, is,
whether this is manslaughter, or chance -medley
ID Mr. Annesley ; for as to Redding, he must
certainly be acquitteil ; and as to murder I can-
not think there is any evidence to make Mr.
Annesley guilty of that ; but as there was some
hot blood, there may be reason to consider,
whether it is not manslaughter : on the other
band, if Mr. Anoesley was carrying his gun
by bis side, and it went off accidentally, then
it will be chance-medley.
Then the Jury having considered of their
Verdicts, without going out of Court,
Clerk of the Arraigm. Gentlemen of the
jury, are you agreed in your verdicts?
Jury, Yes.
Clerk. Who shall say for yon ?
Jury. Our foreman.
Clerk. James Annesley, hold up your hand.
-Joseph Redding, hold up your hand. — Gen-
tlemen of the jury, look uiion the prisoners.
How say you, is James Annesley Guuty of the
felony and murder, whereof he stands indicted,
or Not Guilty?
Foreman of the Jury. Not Guilty of murder,
but Guilty of cbanci'-medley.
Clerk, How say you, is Joseph Redding
Guilty of the same f^lon j and mnrdcr, whert«
of he stands indicted, or Not Gailty ?
Foreman of the Jury, Not Guilty of Os
murder, but Uuilfy of chance-medle?.
Clerk. How say yon, Is the said Janm Ai-
Dcsley Guilty of tlie lelooy and murder, wfeeie-
witli he stands char^ upon the oofoner*s io*
quisition, or Not Guilty ?
Foreman of the Jury. Not Goilty of tbi
murder, but Guilty of chance medley.
Clerk. How say you, is the aaid Je«ph
Redding Guilty of the same felony and murder
wherewith he stands charged upon the cmth
ner*s inquisition, or Not Guilty T
Foreman of the Jury, Nut Gailty of the
murder, hnt Guilty of chance-medley.
Cfcrk. How say you, is the said James An-
nesley Guilty of wilfully sbootine atThomis
Etrglcstone, against the form of the italaie,or
Not Guilty?
Foreman of the Jury. Not Guilty.
Clerk. Gentlemen uf the jury, bearkento
your verdicts, as the Court has recorded fbem.
Yon say thnt James Annesley is Not Goihy tf
the felony and murder whereof he stands'in-
dieted, but is Guilty of chance-medley.
You say that Joseph Redding is ^fot GtDlj
of the same felony and murder whereof bi
standi indicted, but is Guilty of chaMB-
medley.
You say the same upon the coronCr'f iofi«
sition.
You also say that the said James Annedcf
is Not Guilty of maliciously shooting at TW
mas Egglestone, agsinst the form of the il^
tute. And so you say all.
503. The Trial in Fjectmcnt between Campbell Craig, Lessee
of James Annesley, esq. and others, Plaintiff; and the
Right Hon. Hichard Earl of Anglesea, Defendant; before
the Lord Chief Baron Bowes, the Hon. Mr. Baron Mountener,
and the Hon. Mr. Baron Dawson, Barons of his Majesl/s
Court of Exchequer in Ireland. Begun on Friday, Nov, II;
and continued by several Adjournments to Friday the 25th of
llie s:wd .Month;* 17 Geokcje IL a. d, 1743.
'YllFs Court iK-injj sat, the Jury were called [ the Oillowin"; twelTC were sworn to try tbt
ovrr, and aijsv.ortij to tlicir names ; uf whom issue j«Mn«:d LctweeD the parties:
♦ This \s;is the loivTest triul ercr known,
l.-istini; !:» (<a\s, un«t the jury (mo^kt uf thrni)
Ijftntlcmen uf the grtMKsl [»n»iieriy in lri'!.';t:J,
and almost all iiieiubers ot* |)at')iam(-nt. — J'iu'y
were only to try a men* matter ot' tact, wlso-
Iher lord Altliam had a fiou ? Fonr.cr Eui-
tion: In whiih the Ueport of this Ca«e is
incomplete, and io other rrspccts fauliv : 1
lia?e corrected it hy retercnre to ** Th«*. Tiinl
" it Biry hfhvrcn Campbell (*raig, Lessee
H
.i
k(
% m
ih
t<
i.
i:
i(
il
\
of James Annesley, esq. Plaintiff, andthi
Rin^lit Iloucuiable Hichard earl of Angle
Sty, 1 )ell.>ndant. Hefore the Honourable thi
liurnns of the Exchefpier, at the Kiof^
Com is l^ii^lin, iuTiinity Terra, in the ift
and I7tli }t.irs of the rri^ of our Soverei|*
lord (Jcor^L' ilie Second, Kin^^ of Grcst
nrii'iin, !kc, and in the year uf our LcW
li4.>. liOndoM : IVin ted for 51. Cooper, si
the (.Jobe in l*at('r-Nostor-row, ud ioUbj
JMl]
Mttd lUchard Earl of AngUtea.
A. D. 17<3.
Sr Tbo. T«i)lur, twn. Nbi. Preiinn, esq. .
Rl. bon. \V. Graliaii), C. Uxniltnn. eu|.
ftich. Wnlcy, etij. Clutwirlliy tVailp.tfii.
Her. L. lidwley. ca^. Thn.Shtw, e^<|.
Biek. (>Qri{C8, kk\. Gorjrct Lowiliei', esq.
IpIio Prealuu, eiii. Joseiib A«lie, cmj.
PtiWTirr.
3|l>pbellCr>ie,1em!eof Jaine* Aiineslpy,e«).
Oe»snu*jit.
Ihaf%litlinii. Riclinnl earl orAof lain,
The Iuu« woa as follows :
PhEW beTore iht^ Barons of Ihp Exijliequpp. Kt
*■'** Itinr't CourlB, Dublin, of Uie Term
" rite Hr>ly Trinilji, id :lie I81I1 am) tTth
•9 of llie rei^n nf oor BotereiKo lord
"! the Snd, now kinc nf Hreat
I, ami BO fortli ; onil 10 Hie jear iif
' «urLar<), IT43.
County orMesib lovlt;
J^ U Temeiiibereil, tbat iu [bis lamc lerin,
bgiflbdt CraiK, genl. a <l«litor of our lord ihe
nr Uiat DOW if, came before ibe BarDiit of
pp Excluiiuer, by CUailes Caldvrell bia at-
■roqr. luiil brou^ril liere iolo Uii« Courl bis
■D agaiiut tbe ri|{bl boo. Rictiaj'ij earl ut
b^leM>t of* * pica of ti'eipaas and ^ecllnent
M |t farm, tbe lenor of nliich Bill fnllawa in
\mm worda; tliat 19 lu say, Ciiunly of Meath ;
IXlHplMll Craic:, gcat. a debtor of our lord tbe
djif ibat now ia, come* btfore lli# Barons of
iHftBfclieiiuer. on ibe 3rd day of Juur.iu tliit
f(M, by Clisrlei Caldwell bia attorney; and
n.Iui Bill complaini against tbe right hon.
GcllUil evi uf AcifFlesea. (iresenl liere in Court
kn llie same dnyliy Tbamas Burrouglia bis
Moniey, of opiea oflresiiasKand ej«cln)vnt of
k f^nn : For iliut wbereoi James Annefiley,
i|. on tbe HI day of Alav, Mh% at Trim, in
■K county of Mealb, ifeinisetl lo ibe laid
(^pbell 30 messuages, 30 lofu, &0 col-
Ipgn. 3 milli. 50 gardens, 9Q0 acres of arable
W. 300 acretf of oieaduw, GOO acres of pat-
IMi so acres of furxe and heatby ground,
W acrts of moory ground, wiili iGe appur-
jlWi'' "t in (ireat Stna^ine, otherwise Sta-
■MN»i.iiltLeSian)ine,otherRise»U[DQcn. Little
Dtmoantey, Sballon, Kilkarran, otbrrwiae
Kilwhtfraa, CrufTey, Annagor, utbvrwisc An-
Mpr, and Little (ialfnev, situatr, Ijiug and
kaug in Uie inutily of fHeaih afbreiuid: All
irhiGlt faid pieiniasea were formerly tbe e^tale
ff Ibe riglit boo. James earl of AugUtea, de-
fnaod, and lately ih« estate of tbe right bon.
Aaltvr bajran ol Allbatn, also deteased : Ti>
tfa>r villi \-i bold the aaiil deouaed premisae*,
I'liaucea, to him tbe aaid Camp-
'!■<, admiuialralors, and umigns,
. \ of May aforesaid, in tbe year
ii'jrvtAid, for the term, tiiuc and
ars from tlienvE next ensuing,
\\ua
and fully ta be comjiUu and taAti. teJ
irlicrcas also tbe ligbt faaa- Jaaws tari mT A«>
gleacn, nn Ibe oauie liil day ul Hay lfliniai<,
lU llie year of our Lord iif'ftMtuI, >t TnM
afurewid, in tbe cuuniy of Mralli afori^Mj.
deroised to tiie said Cam.
30 Infis, 50 cntlages, 2 nii , . _
acres of arable land, 300 ucrca of ninmnr
600 acres of pasiore, 50 ar.tM of iiata •»!
beatliy ground, 50 acres of moorf ^rMiad,
- ith Ibe appurteuHncea, in Great Htaminr,
berwtse 8||n>i!en, Siamioc, oiIictwim: Ku-
een. Little Unnacarney, 8b a) loo, Kdl'
irvan, aiherwiw KilUliarvan, CruRcy, iit-
■lagor, otherwise Annager, and Little Gaffiicy,
aituaite, lying, and being In ihe count) nfBIeilti
afurcaaid ; all which said preroisfcs w^ra
formerly the eatste of the rigbt lion. Jauira
enri of Anglesea deceased, and lately llie L'slste
of the rii-bt hon. Arthur baron of Altham, aim
deceased : To baie and la bold tbe said du-
isfd premisses, with the appurtenaoccs, lit
hioi il>e said Campbell, his eieuiilors, ad-
mi^tralurs and assigns, from ihe isi day of
May aforesaii), in IbeyearMl'nur Lord afnreaaldi
Ibr the terra, time, and space of ^'1 years fmm
bence neateiisiiinif, and fully tu be cumplete
inj enJi-d, And wliereas also ibi^ hon. Jamva
Anuesley, only son and heir of Arthur late
baron' Altham, of A llham de erased, otherwise
the right hon. James baron Allhani of Altlutra,
'' Isi liny of May aforesaid, in the
IjOrd nforeaaid, at Trim afuresaid,
demised to llin said Campbell 30 rnessunKes,
30 tolls, 50 collages, 3 mills, 50 gardens, BOO
of arable laud, 300 acres of meadow,
eres of pasture, 50 acres of furze and
be a Lby ground, 50 acresofiooary ground, with
'be an|iurieoances, in Great Sianiine, otlier-
riae Slameen. Little Siamine, otherwise Sta-
Dcen, Lillle Donacarney, Shallon, Killcarran,
itherwise KillBbarvau. Cruffey, Annsfjor,
ilhernise Aaiisger, and Liitlu GatTney ; iilu-
itr, lying and being in ibe county of Mealb
aforesaid: All which said premisses were fur'
in«rly the estate of tbe right bou. Jumes eari of
Anglesea deceased, and lately ib« eslale of Ibe
right bon.Arlliur baron gf Allliam, aim de-
ceased : to have and tu hold tlic said demised
premisses, with the apiiurtrnimccs, to him tbe
said Campbell, bis eifeculors, adminiairalors,
and asslKus, from tht Itt day of May afore-
siiid, in tbe year of o«r tioriV aforesaid, liir the
term, lime, and tpnce of 91 years from ibeacs
iivxt iosuing, aud fully to be uainplele and end-
ed : By virtue of wliicb aaid ai^feral demises
be, tho said Campbell, aiteri*arda, ta wit, nn
the End day of May aforaaaid, in the year of our
Lord uliiresaid. entered into tbe aaid demised pre-
misses, with the apiinrtenancea, and was there-
tbe aforesaid Ilichard earl of
of puKseased until tl
alierw
ds, to w
) the 3d day of
with t'orve and arms, In wit, wiib hworils,
clubs, aud ao l^th, entered iplu the said de-
mited premiaaes, with tbe aiiparteBaDMti iu
and upon Ibe t<asacaaiaa^^way^Sj|' *"^
JI43J . 17 GEORGE 11. Trialin
fln»l rjectr*!, <^\jif?llH, oiid removed him, Hie
5:ii(J Campliell, I'rotn his snid farm (his trTni ih
t|if2 pn»nussrs not being then or since dctcr-
n-iinril) niid the said Campliell hciii^ so rjccted
from liis said farm, be. the said Richard earl
of Acgflesea, hath ever- since, and Ftill doth
^vith-hohl the posse ns ion thereot'from him ; nnd
then and there did otiicr wronp^s and injuries
to him, against the prace of our said lord the
king^ that now is, and so forth, and to the dam-
age of the said Campbell 100/. sterling; hy
means whereof the said Campbell is less able to
pay the debts he now owes to our said loni the
king, at the recript of his said Exchequer ;
a:id thereupon he brings his suit, and so forth
pledges to prosecute John Doe and RichanI
line. To which the aforesaid Richard earl of
Anglesey, by his said nttorney, comr.s and de-
feuds the force and injury when, and so forth :
And sr.ith, That he is uot guilty of the trespass
imd ejectment aforesaid, iD manner and form as
ttie said Campbell Craig above a^^ainst him
liath declared, nnd of this he puts himself upon
the country. And the said Campbell Craig doth
hkcwisethe same. Therefore let a jury there.
of be made, and the shcriltof the county of
Aleatb aforesaid is commanded, that he cause
to come here, and so forlh.
The counsel for the defendant having con-
fessed lease, entry, and ouster ; Mr. Lill, of
counsel for the lessor of the plaintilf, opened
the declaratiuD, iu substance as follows :
Thnt the plaintiff had broup^hthis ejectment
for thirty messunges, lifiy cottages, two mills,
fti'ty gardens, eight hundred acres of arable land,
throe hundred acres at' meadow, six Imudri'd
r.cres of past mo, fifty acres of furze and htath
grouiul, fifiy aciisof mnnry ground, with the
;ippnrtcna:n:o»s, in (ireal Stainine, f>tlscr« i.se
JSti'mcrn, Jjltio Sinjninc, otherwise Stinicen,
liiltfc Donararney, Shallon, Killcarvan, otlicr-
wise Killsharvaii, (Tnircy, Anna;:or, otherwise
Annager, and Tiiulc GaiTiicy, *;ituate in the
tf'onnty of Meatii, demised to liini by JauH s
Anncslcy, esq. ; that if they provi d the lessor
of tl'c plaintiff, James Annesle}', esq. to be the
only sen nnd heir of Arthur late lord JAItham
decease i!, («ho enjoyed the said premisses) he
hoped the jury would find a \trdict lor the
|dainti(r.
Srrj. Marsha fi. I am in this case of counsel
with the lessor of the plaiutifl*, uliose title
stands thus: Tht^ lands in quest ion vire the
vstate of Arthur, late lord Althain. r f >\l!ich he
died, scisol, and the lessor i>f the |i:;.i;ilinis his
<iuly son and heir, -"My lord, if this were a
rommou case, I siiould have rested liere ; but
;is il.e course of descent has been interrupted
oil a supposition that lonl Altham died without
issue; and as tiilu is a matter ot'grrat expecta-
tion, \ery extraordinary in its nature and eir-
rumstnnce^:, and inny lie much more so in its
consi-qiu nccs ; so it' will be incumbent on me
|iarticuiarly to point out to your lordship, and
po the jury f (be time aud place when and where
Ejectment beitccen J> Annedcij, esq. [1144
the lessor of the plaintiff was born ; for on that
imporiant birth this cause must depend.
My lord, in the year 1706, Arthur late lord
Altham was marriecl to I^lary Sheffield, natural
daughter of Jfdin duke rd' Buckingham. After
the mnrringc, lord Altham's affairs required bis
attendance* in this kingdom, and in the year
1709 he came over ; hut his lady remained ia
England till theycar 1713. when shecameintn
Ireland ; and in the^ear 1714, lady Altham re-
sided in the city ot Dublin with lord Altham
her husband, and proved with cbtld. Wbcii
she had been some months advanced in bcr
pregnancy, and at the latter end of the ycv
1714, lady Ahbam went to his Iordalnp*t hnuM
at Dunmaine, in 'the county of Wezford,
where it was publicly known in the neighboiir-
hood that lady Altham was with child, and Ite
then dowager lady Altham (who was married
to Mr. Ogle, one of the commissioners of the
revenue iu this kingdom) made lady Altham a
present of a very rich quilt against her lyin^-
rn : and it will appear to 3*our lordship, and to
the jury, that lady AlthamN pregnancy was w
well known in the country, that interest w
made by several women to nurse this child
when it should be born ; and that «rreat care
was taken in examining (he niiik of the seitfnl
women who did apply to be nurses, and thit
one Joan Landy was approved of to he the
nurse. My lord, in the Ix'ginning of the veer
17ir>, lady* Altham fell in labour, and was deli-
vered of I he lessor of the plaintiff by MrK.Shiel,
a midwife of skill and reputation, who ihn
lived at Ross, about three miles from Dun-
maine ; ami it will appear to your lordship ind
to the jury, that lord Altham expressed gmt
sati«»fa-tion and joy upon the hirlli of this sou;
that a biuitire was made upon this happy crefii,
and drink puldicly given lo the neighbours aod
people who came in to testify their joy upon
such an occasion. It will likewise appear to
your lordship, and to the jury, that great pre-
parations were made for the christrning of
this son ; and that about a month after the Urih,
the lessor of the plaintiff w;is chrisleiied atllie
late lord Allham's house at Dunmaine, in the
parisit of Tynternc, by one Mr. Llovd, who
was his Irr.dship's chaplain, and at that time
curate ef I Joss, by the christian name of James,
iti\eY i:is grandlaiher the third carl of Anglesei,
I'rotn whom lord Altham had receiveil gi«l
favouif, and the sponsors on that occasion were
Mr. rolclou;;h, l\Ir. Cliff, and Mrs. Pigot. I
mentioned to your lordship before, that Joaa
r^indy was appointed the nurse; her fatbfr'l
house was about a quarter of a mile from Don-
maine, where the child continued for about a
montli ; and then the nurse's father's hoiBe
being first made fit for the reception of such i
child, he was carrini to that place with hif
ntirse : and it will appear to your lordship, sad
to the jury, that for the convcniency of lady
Altham, and that she might visit this child is
often as she pleased, a coach-road was made
from the house of Dunmaine to the nune'i
father's house. When the child was abovt
1145]
and Richard Earl nf Anglesea.
A. D. 1743.
[1146
■ixtpen mnntlis old lie was weaned, and bron^ht
back to lord Allliaiii's bouse at Dunniaine,
wberi; one Joan I^ffan was appointed his dry
nurse : and it will appear to jonr lordsbip, and
to the jury, that while lonl and lady Altham
were united, the ffreatest fondno^ was shewn
to this infant by both. My hxd. in February
1716, there were some very unhappy difierpnces
between the late lord Altham and his lady,
upon which they, by at^ecment, separated ; |
bat lady Altham, as was extremely natural,
desired to have the company of her child,
which loni Altham, but nith (firat expressions
of rcfi^aril and trnderness for the child, refused ;
■od it will appear to your lordship, and to the
jury, that lady Altham lc'f\ her son with the ut-
most concern and regret. After this unhappy
ieporation, lord Altham forbade lady Altliam*s
access to this child, and directed that she should
by no means see him, and that the child should
oot be carried to viMt her. The lessor of the
plaintifT, thus dpprlved of his mother, continued
at Dunniaine in the care of servants, until the
year 1718, and in that year lord Altham re-
mnved his family to Keima, in the county of
Kildare, where he con tinned, about two years ;
■ad it Mill appear to your lordship, and to the
jury, that the jpssor of the plaintifl' was educated
there with the trrentest aHeclioo, and was con-
stantly reputed anri deemed to be lord Altham^s
son and heir. My lord, in the latter end of the
year 1719, or hej^inninir of the year 1720, loi-d
Altham removed tu Dublin, and had a house in
this to;vn hir some time, to which the Icf^sor of
the plaintiff «« as ako broiitrht ; and it will ap-
pear to your lordship and to the jury, that he
was then ( lothcd in a very extraordinary man-
ner, and was treated and esteemed as the son
and heir of tiie lord Althum. My lord, some
time in the year 1720. lord Altham removed
tn a place called CarrickdiifTH, in the county of
Carlow ; and it will appear to yniir lordship,
and to the jury, that as th<t lessor of the pluin-
tiflf was then of yenr<t capable of instruction, so
lorfl Altlinm (i^vided a tutor for him in the
house ; aiid when afterwards lord Altham sent
the lessor of the plaintiff to a public school at
UuDcfody in the county of Carlow. that he was
there Mttendcrl as the son of a nobleman, and
trcatt;d as such. My lord, in the year 17SJ2,
(it was a year extremely fatal to my client)
lord Altham bei;an a criminal rorres|ioiidence
with one Miss Uresfory, and in the wintri- of
that vcar, lord Altham settled in Dublin with
her, iualiousein Cross- lane ; and it will ap-
pear to your lordship, and to the jury, that this
Aliss Gregory, liefore she had made her in-
tercut in lord Altham quite srrure, behaved tolcr-
aMy well to the lessor of the plaintilf; and the
lessor of the niaintift' was broucfht to the house
where lord Altham resided with her, and was
ient to a public school in this city, and was
used with great care and tenderness by his
father, and at school was deemed and taken
to be the ton of lord Altham. It will be necessary
to mention to your lordship and the jury what
fcccame of Jady Altham ancr this separation.
She resided in the town of Ross for about three
years, and her aflection for the lessor of the
plaiutitTwas so stronsf, that, notwithstanding-
lonl Altham's prohibition, she foimd means
privately to see the child, and always expressed
the greatest regard and fondness for him, and
complained much more severely of being de-
privefl of the comfort in her child, than tbeloss
of her husband. In the year 1720, or there*
abouts, lady Altham came to reside in Dublin ;
but, unhappily for this lady, she had in her
lyinnf-in contracted disorders, which at last
ended in a dead palsy, and not only took from
her the use of her limbs, but also, in some mea-
sure, deprived her of her memory and senses ;
hut, notwithstanding, it wilt appear to your
lordship and to the jury, that during the time
she continued in this kin£;dom, she kept a
secret correspondence with tJiis family, relative
only to this child. In the year 1723, lady Al-
tham was carried fnim this kiotrdom to London
in a very languishing condition, and there,
during the remainder of her life, lived upon
the bounty of some persons who had charity
enough to support her. My lord, from this
langiiishiiig condition of lady Altham. Miss
Gregory, who had gained a prodigious influence
over lord Altham (who will appear tu your
lordship to have been a very weak man), had
hopes from him of every thing in his power,
expected to I)e1ady Altham, and had assumed
the title even iu the life- lime of lady Altham ;
and therefore considered the lessor of the
plaintitr as the greatest bar to her h^pes, in
case (die should have issue by this lord, and
thereupon grew very harsh and severe to the
lessor of the plaintiff; she raised doubts in the
lord Altham, that, thou<rh this uuh the son of
the l.idy Altham, it niiiflit not he the son of his
lordship, that so she might take ofi' that pa-
ternal aflrction from the lessor of the plaintiff',
which he had always shewn to him hefiire ;
and, my lonl, she gained such an influence at
last upon this unltnppy lord, that she firevailed
on him to remove theh'-sorof the plaintiff out
Of his hou'ie ; and in the year 172-1, the lessor
nf the plainiiff was sent fiy lord Altlinm tu one
CoopcrV in Shin-street, in this town. But
the heart of loru Altham was not at this titne
quite estranged Irom his son, for he {;>a\e direc-
tions there that the lessor of the plaintiff should
he taken great care of, that he should be put
^o school ; and it will appear to your lordship
and ti) thejury, that he \\i\s put to ncIiooI at one
Dunn's, in Warhnrgh-strLtt, in this town, and
that lord Altham rauie pri\:itc1y sometimes to
see him there. My h»rd, it will uppcar to youi
loniship, and to ihV jurv, that about this time
the necessities of the I :it*e lord Altham were so
extremely great, that he hioked out to raise
money by all manner of ways and means ;
and lord Aithain l>ein^^ advised, that if the
lessor of the pluintifl'uere out of the way, large
sums mii^ht be raised by the sale of reversions,
in cunjunctioD niih the remainder-man iu tail ;
and this scheme being agreeable to the inclina-
tions of Miss Giegor^' ^ wb^^ y{^\ V\^vw^>a ^JN-
1147J
17 GEORGE II. Trial in Ejceimeni heiXK^een J. Annesley^tiq. [1 148
rid of the lensor of the plaintiff at any rate, it
was detennined that this g^eat ohstacle to lord
Altham's desire of raising money should be re-
moTed ; and to that end tkie lessor o^' the plaintiff
was sent to the house of one Cavena^h, with
directions to be kept quite private, so as it should
not be known where he was. What farther
was designed ai^dnst him I cannot say ; but it
will appear to vour lordship, and to the jury,
that though tne lessor of the plaintiff was at
this time a very vouog lad, yet he was a little
too sprightly to be confined in thai manner ;
he fouiid means to make his escape from
thence, and being denied admittance into his
lather's house, he roved about from place to
place (as will be more particularly git en an ac-
count of to your lordship and to the jury, by
tlie witnesses) for tlie suace of two years be-
fore the death of the late lord Altham, his
father,which happened on the 16th of November,
1787. But during all that time, be was taken
care of by several persons of extreme good
credit, and considered as the lord Altham 's
sun and heir. Upon the death of the late lord
Altham, in the year 17S7, the lessor of the
plaintiff was extremely young ; he was by the
mother's side destitute of all friends whatsoever
in this kingdom ; and the now defendant, the
earlof Anglesea(I must take the lilierty now
of mentioning him), he, my lord, upon the
death of the lord Altham, claimed the title of
lord Akliam, as brother and heir to the deceased
lord, upon a supposition that the late lord died
without issue male. My lord, it will appear to
your lordship, and to the jury, that many
people whohad known the lessor of the plaintiff
for several years before bis father's death, ap-
peared to be greatly surprised that the de-
fendant assumed the title of lord Altham, iu
regard that they believed the lessor of the plain-
tiff to be tJie sou and heir of the lord Altham ;
and there were murmurings among the ser«
f ants, and a great many people who were ac-
quainted with the lessor of the plaintiff, on that
account. It will appear to your lordship, and to
the jury, that, in order to remove every (iltstacle
out ohhe way of the defendant, and to take from
the lessor oi the plaintiff all possibility of ast-
serting liis right, and claiming the title, an
attempt was made very early after the death of
the late lord Altham ; an attempt was made,
I say, to kidnap the lessor of the plaintiff; and
it wdl appear thnt the tirst attempt was in vain ;
a second attempt of this kind was made, and
Jikeu ise defeated ; but the third attempt was
luure successful ; and in about four nnonths
afler the death of tlie late lord Altham, the
lessor of the plaintiff was sent into America,
and there sold for a common slave. I, my
lord, have not taken upon me to mention by
whom tliose several attempts were made, it will
much more properly come out of the mouths
of the witnesses ; and when they shall s|»cak
it here upon the table, every body will judge
with what view and deaign such a wicked
attempt could be made. My lord, the lessor
of the plaintiff, while hewu in shtveryi auf-
fered many and various l)ardalu|Wt u ef cij
body in those unhappy circumstances doei,
and did make an attempt to regain his liberty i
but being retaken, he suffered according to Ue
law of that country, and continued aboot 13
{i^ears in shivery : But it will appear to yoor
ordship, and to the jury, that even in tbit
miserable condition, when he bad an oppor-
tuoity of rcdating his misfoitunes to any bodj
that had compassion of them, he did menlioa
the unhappiness of bis case, and by what
means he was reduced to such circumslancci.
It will appear to your lordship, and to the ionr,
in what manner the plaintiff was brongbl^
the care and bounty of Admiral Verooo, iohi
the kingdom of Great Britain. There an oa-
happy misfortune detained him for some lime;
he happened by an accidental shot, to kill a
man near London, ibr which he was iadided,
stood his trial, and was honourably acquitted.
How that prosecution was carried on, or ftr
what purpose, 1 shall not take upon me to ay,
though it will have its weight in the case ; m
it was necessary to meation this circiiiH
stance, to shew that, when we were at kboty
of coming into this kingdom, and prosecntlDf
our right, we did it as recently as was in for
power. When these facts are laid before joor
lordship and the Jury, we of counsel for the
lessor of the plaintiff, do apprehend there ii
such a connection in every one of them, that
the force of truth will prevail, and that yoor
lordship will direct the jury to find a verdid
for tlie lessor of the plaintiff.
Serj. TudalL My lord, Mr. Serjeant Mar-
shall has so fully stated the case of the lesnr
of the plaintiff, that I have no further facu lo
mention, unless the gentlemen on the other siih
should require of us to prove the title of the
late lord Altham to tlie lands in question; if
they do, we arc ready to enter into it, sad tt
shew that by the will of James earl of Angl^
i»ea, a remainder of the lands in the declartlius
was limited to the lessor of the plaintiff, alter
the death of his father.
Mr. LehunU, of counsel for the defendant.
My lord, I hope they uill read the remaimlen
in the will of James earl of Auglesca, and the
codicils ; whereby it will appear that the neil
remainiler of the fanthi in question, ai\er failure
of issue of Arthur late lord Altham, was limited
to Arthur earl of Anglesea, and not to the pre-
sent defendant, who was brother to the late lord
Altliam. .
8crj. Mar$hal. We ailmit that the late lord
Altham was tenant for life of the lands in the
county of Meath, and tliat Arthur late earl of
Anglesea had a remainder before the present
defendant, and did enjoy it aoccordingly.
Serj. Tisdall. My bird, the legitimacy of tht
lessor of the plaintiff is the material point
Mr. Recorder, for the defendant.' My lord,
the lessor of the plaintiff insists thai he is lbs
legitimate aon of the late lord Altham ; if thil
be proved, there will be no neceMity to km
tho wills and codidls: for we a4aiii thtf ■
Hfei
flflrf Jik^ard Eart of^ngUiea
A. D. I7«S.
[m^
Arihur lord AlHram left ■ soa, ihe prweni mi
of Anglne* bu no rigtit to the laait i
Iwd Allbam intennarrieil in the year 1706 witli
Marr Sheffield, nuural dau;;hler or the date
of RockincrbaRi (which was sdmilled). My
■laril, we hcve been so happy u to be itile not
*aly to trace the leawrof the plsintiff from libi
"blttn, but to shei' some preceding circum-
Mace*, rendering it liig^hly pmbible; oiih
Wlich we •hall begin, by Uving before ymir
MiMitp ind the jniy, tb*l imninliitely after
^ij Aliham's coining into this cuuntrr slic
frttred iriih clilld, that bIic miscarried at Diiu-
wdne or that child, that she proved prc^naitl
■ Koondtinie. sad was delivered of the lessor
tfttlejibintilf.
' X. C. fi. Boicri. GenltFTneti, from the evi-
4nce as optiipd, I see this is like to prove a
fiat of lenglh, 09 well as expectation ; and I
tUnk it is to the honour of your country, as
iHfl U for the s^Iinntogr of the [<Hrlret con-
§ed, thai itten of your rank and known pro-
atteriil the trial of thia issue : Dut E fear it
Bot be in the power ol llie Cunrt to take Ihe
4|ridetice >vj(li nicb eiaeloesi as to g-ive you
l^ha usual assislBDce, by aiimining of it ii|l at
4b md ot'the trial. I must iberefors rei|i»e«t
4ig,g^nlle(nen,to lake notes as we proceed.
Mrs. Dorothy liraco sworn.
Says, she ktiew lord and lady Allham at lite
iaconenl'B lather's house in Brulc-street, Uuli-
jflh TIjU her father's name wu Temple
SIko, and was called captain Brisco. That
kCn and Inily Aiibam came to her father')
WiK in 1713, abont the laller enil of Octolivr
H)iD*«mbrr, and went froro IbeDce lo tndge
Wfitt Mrs. Vice's at Tern pie. bar, near ih'r Mip.
'Thtt she iilleriTarJs was at ihnt liousc, and
iflied with them there. Says, tliat she. with
K r«at of Ihe ramilv. were desired to ten lord
idlady Althatn to bed at her father's bouse,
Itlit mi|;lit be knonn they were reconeilrd.
'Hmtfrnm Mr*. Vice's houae lord otid ladv
UliRin went to Dnoiftaine. In the county <if
Wttftrrd, about Chrialmas. 1713. That she
tjfUtmuia saw lord and lady Allham bI Mrs.
|9|M'a,tbe latter end of summer 1714.
Settrklla Coin, iworn to the Voire Dire.
9ayi, she never was promised any thing for
'^0*iB^ her testimony in this cause.
C^^UK Kworn in chief, de|><isclh, that tht
|%fttw the laic lord Allham and his lady, io
^13, by a reconciliation b«np made between
Iktei at her father's house. That it was snme
tfne about Cliristnias that they lodged at her
JMber's bniisc four or fi<e days, and went front
Hwe taTemple-bar to Imige; observed them
live coinlbrtably— dii> see lady Allham at
igJnple-bar. That my lord aitd lady went 10
-IhniDkine about Christmas. That tlie depu-
jftk and her mother, being invited, wont la
■'■itiDRiae aboulUlB »pdBg, ITl*. That My
Allham waa with child while deponent wa*
there, bnl received a fright and toiscarried.
That the fright was occasioned by my brd't
being in a great rage at their bringing some
saucers to table coulrary to bis eiprets order* ;
upon wliich he threw tlie saucer* inle tha
chimney just b;)r my lady, nho was trtted al
the upper cml of the table. That llie deponent
lay with her mother ; sod thai in the nigbl of
thai day h«r iiialhEr wa* called np by Mary
Heath, her ladyship's woman, who tidd her,
that lady AKham was ill, and desired her U>
come. Says, that my Isdy miscarried that
niylit, and deponent saw the abortion in a bason
next morning. That deponent's mother said,
if lady Altham was so easily fri^itetied, she
never would have a cliihl. i&ys her nntlhcr is
[Cross- eXB mined]
Say*, she is about 4i years eld->Mn't rv-
memW who were the •errants when ihe waa
■I Duiimaiue. She nas asked, betiig so young,
hoiv she kocw it to be an abortion ? Says she
beard il from her molber. She wai asked,
wbst kind of sauocrs were thrown f Say*, they
were china saucers with udil kinds at fi^nirea
on them, and that lord Akhare had then be-
fore he was married, and ordered Ibeni not to
bo bronghl 10 laUc to hia lady. Says, she aad
her roothEr were at isble, and thai she sat ■!
Ihe latly's riglit band. Mte was nHbed whM
Ihe butter's name »u then ? She ssiil, he wa«
called Holph. She waHaskeil, was bo proaanlf
Mays, to Ihe bosl of her knowledge, Iw nas,
and brought in ilia second conrie. Say*, Iar4
Altliam nstil Ihrse word?, when lis ilirowUiw
sanctrs, Tb«*e aaucr*?, ya know, I orderod
ne'crtocoow to tobl* j sad Ibat ibereotum Ike
lady Allham fell into a dt of tears. Ssys, sk*
never was pvomisad any lease. Wat asked, if
any pbysioinus were called. Nays, ibe do*!
nol remember any. Says, that lord Alth«»
said aftenrarda, itwaslhe hidy'suna fault ihal
she had miscarried.
.^/iceSo'M sworn.
Soys, she knaw lady Allham al captain
Brisco's in Bride'Streel, in 1713, aad ol her
lodging* in E ••«):■ «treer, in November 171*.
al Mit. Vice's, and that lady Allham watf
ihee with child. Says, that lard AlthaM
mentioned these words to deponent. By <M,
Ally, HoU-H with child; ss>s. she -^M
lady Allham joy of her beini; wiib ebiM, m0
that lady Allhsm thanked her in \inmmm ^
my loriT Hays, she saw tady Alllinn iiwe^
three tiine« alter, bel'ore Iter ladyrfBi|i wmii^
of town, and spoke lo her of it ; and Mfc ^
lady Allham always owned it. Aad 4mm^
saw her growng bigger, and bad ^ ^f^^
nity of dresaing her.
Says, she can't tdl mtm a^^ '__ ^
pregnancy. Kays, she vraNMl^ *fc«- "■
andalteniled ihere soBfli^v^a^ ^*^*
17 GEORGL II. Trial in Ejectment bclveen J. AuneJey, «»/. [ 1 1 jg
HjIJ
Bcinpr aske«] of wbat size lady Aliliani was ;
and oi' ivhat roiuur her hair ? Says, the was a
middle -sized woman, and Iter* iiair a dark
brown. Sbc was aske<l, it' Airs. CiisiH) went to
J)unmaiiic 1' She says, she w (.at in tiiu spriu;^
1714yand one oFher !Jau;;hiersulon^ with hu'.
fcihc \t'a« a>kcil, how ohl that daiitfhlci- was;
and if fcho was marriagcahlL' ? Shcsa^sshe
got a^liair to go . . .
fche was told in the family, that lati}' Althani
\%B3 with child; aaw her about three times at
her master's, and at her lodgings. She was
asked, How many daughters captain Brisco
had ? Site said five ; but could not tell ivhich
of them were at home uhcn Mrs. Brisco went
to Dunmaine. Said, Miss Harriot was in the
country with lady Aliliam ; and s:iys, she
heard tier master and mistress' say, tliat the
lady Altham miscarried in Dunmaine, and has
heard Mrs. Cole say so.
Catharine M'Cormicl: sworn.
Says, she knew lord and lady Altham, when
they lodged at Mr. Vice's near Temple -bar,
M'here depontnt was servant in the year before
(|ueen Anne died, in or about the latter end of
suDimer ; says, that the lirst time of their lodg-
ing there, u running -footman came with my
kiril's slippers ; and there was a rumour at lirst
that my lord was married to one of captain
Brisco's daughters, but it was soon afterwards
known that lady Altham was come to town.
That lady Aliham went to Dunmaine from her
master's houvr, and about the latter end of
May, or be^itniitig of June following, came
from the country to Mr. Vice's the second time.
That there wl;s some talk in the family at Mr.
Vice's of the miscarriage at Dunmaine. Says
that my loid one evening having words with
my lady's woman, Mrs. Heath, made a great
Doise, n|K>n which my lady was frightened and
screamed out. That Heath then tohl u)y hud
that my huly had miscarried or was going to
miscarry ; whereupon he sent for one Mrs. |
Lucas a mid VI ilc in the neighbourhood; that :
one Mris. Law ler another midwife was also sent
for; says, that lady Altham miscarried al»out
siv we(>ks after fur conting to Mr. Vice's:
heard it from Mrs. Heath her woman, and
Heath said the lady ivould be a fruitful woman,
only for my loids usage. That about two
mouths alter, she heard lady Altham was a^ain
with child, and was told so'by Mrs. Heatiriier
woman, who mentioned to her she had good
news, for that my lady was again with child.
Says, there were great changes in my lord lor
the better, upon my lady's being with child
again ; that he used to come home earlier tiian
usual, and that a pair of low- heeled slip|Mrs was
bought for my laily, for f.-ar of her siuuilding
and thereby occasioning a miscarria^'i ; sa^s)
tliat at a certain time the de[M)nent ob^iTving
my lady pretty big, she wished her la.lyship
umch joy of tier )ittl« big belly ; that uiv lutd
said that was an Irish bull, and mcnliontd to
depoueot that he believed she mif^bt uiakei
I good nun.e; says, this was in Deccmlier, about
: teu days before Christmas, the year qae«>n
I Auiie (!ied ; says, lady Ahhaai did not lace
he:M-lf as usual. Thought and btlieved lady
' Altham to be big, and had the w.dk of a fioa>:rn
: big with child. That jellies aod broths iierc
i made for her ; says, her husband remaioed a
! servant to my lord, and she parted from Mr.
Vice's family ; says, the lady not seeing com.
pany , made her first beiieve she w as w iib child;
says, she gave herself full ease end libertvioa
night ^own. Said, the occasion of my Jailv'f
miscarriage at Mr. Vice's was by my loil'i
coming in one night in liquor; aud some dis-
putes hapjiening between his lordship and Mn,
Heath, my lady's woman, a stool was tbrova,
which mude a n(»ise, and frirrhtcncd my ladj;
says, Mrs. Heath said to my lord. You lia'ie
done a tine thing, my lady" has miscarried;
says, she was servant at Mr.* Vice's, when lady
Altham kept her bed a fortnight ; dou'i re-
member the names of captain Brisco's chiMm,
or when they visited laily .-\Uhara. But ayt,
Mrs. Brisco was au intimate acquaintance of
lady Ahham's.
[Cross-examined.]
Being asked in what manner she got her
livelihood ? Says, by her honest industry, acJ
tliat her employment is stamping or priatio*
papers for rooms. Being asked whether the
had any discourse with one 31 rs. Shaw? Ssu
she had ; and that having mentioned her lifjin;
at i\lr. Vice's lumse, she was askiit if she knev
that Mr. Annesley was a sou of lady .4l(han].*
or if ihe could swear that my lady wasirilli
child of that very boy ?
Dorothy B/isco called up again by the Defend*
ant's Counsel.
Says, she hoard lady .41«ham was nithchiR
and miscarried at Duiiiuaiiie : cau't charfrc brf
memory if lady Altham was a second liuiewiiii
child ! says, her mother aud sister came ia
about thn^ months home from DuDinaiiir<
Sa\ s, that lord and ludy Altham came to Duuiii
after (juccn Anne died. Don't rcmeinlKT l^r
ladyshiji's being with child ; for dLpoucol wti
in the small < pox when ^uCcmi Anne died,ao4
her mother came to tov%n on her having ibe
sniall.po\: says, lord Altham came from IMin-
maine auout Auiju^t. She was asked wlicibfr
she knew the witness Alice Bate:>: ta^s sli'
docsi, uikI that slu' is au honest worthy uoiuas
■
Mrs. CoLs called up again by the Dcliiidint*
Couusel.
Says, she n members Alice B.Mes to lie asff
vantat M\. \ ice's : c;tn't n^colliri if she luM
her that liiii> Aliham was with cliiid. ^»»^
tliat lad \ .\i'thaui cuuie to town after hnr an"
ilicr. towards liie winter : believes bhe visitalil
hrr liui!»c : can't rcmeuibev it» being laikdul
that lad^ Aiaium was wuh child. S.j\k. >!»«
was at Dubl.u when she he^ij of the 4«iewl»
mnd Richard EaH ofArtp
ri ihat my liJy oom ffom tbe-cauotrj
awioter: uvi, •beremiined at Bur-
fbr nix weeks, and in DtiomBlne ibe
KHtih of Mtr, and that ibe left Uiiy
A. D. 1743.
[CnMa-examiDed.]
[1154
Charlet M-C<trly t^ma.
he knew lanl Altbam, and knew hit
ca tliey lireit it Vice's, in Ihe Tear
1716. Drpoiwnl krpi aa inn al Col-
en, ■adloru Allham liulacoach'hoiwe
M from depODent. Tbataftertbedeaih
Anne, ab<iut ■ year or s year and half,
!porleil InHy Alibatii had a cliild. {D«-
lam.aiilieThrra- Tun tavern, butwaa
il Iberofrvm, it being malter of hear-
ayi, that the fiirliament nu litting
ril Althain l<M)){ed at Mr. Vice's, and
Iiyor Richard iFilzgrmld aworo.
he kneiv loid Allham, and wu ac-
I witn liJE lordiliip in 1711, at a (ilacc
ros|in;t'II,iil in tlie county of ^Vater-
1 al Uiiniiiaiae, and knew la.ly Attbam ;
onent waa at Donmiine aonie lime iu.
Being aslccd if he wai *ure il waa iu
' 1715? aayn. be ia c^laio; hut sayi,
I iHil then tee U'ly Alih'am, liccauie ihe
ng in at that tiiiic, and that ihc Kent
)wn to lite ileponrnt, lliat If she couU
bndy, Hhe woiilit gcehim. Ueinj[a»ked
jiun nf liis coinin-f to Danmaine, aayi,
loM Allham at IIom, wlin iiitited drpo-
Jine wiili him the next dny ; that de-
leitired lo be excusinl, because he waa
with aume utlicers ; but lard Altli
ponctit must diiie with liim, and co
■oou: groao in); -drink, for Ihat bii wife
abour : riejinneiit told liim thai waa a
he uiighl nut in go ; but lord Altharo
ool lake an excuse, ai>d aent the de-
word the next ilay lo Itoas, that his wife
Bjcht to bed ot a ann ; and the deponent
> Dnnmaiae and dined Ibere, and bad
loouraeabautthe child, and lord Allham
Jiat the i)e|ionent should lee liiiion;
mliQKly the nurse hroujj'bt the child to
It, anif deponent kisicil the child, and
ilf a guinea to the nune ; ami some of
ipaoy toasted the heii^apparent (0 lord
«al dinner. That this waa the day aflei
d waa born ; and deponent aayi, be left
atrythencxtday.anil weDllotliecoaDi]
terfard, to his own house at Proapect-
Sayi, deuonent saw the woman to whom
t the balf-g'uinea, ibia day of bia em-
n; that he remembers her well, beuauae
notice of her when he gave her the half-
that the was very handsome ; Ihit he
■lay at Dunmaine that night, bul came
■t nigtil-lall, and wot attacked in the
robber*: that he croned the fcnv oo
im home — remembers that the lord Al-
■m in bigh apirita with Ihe Ibougbti of
DeiwBent waa aaked, did he erer return ta
lite conoiy of Wexford i Says, he never did i
he was asked, hnw far Prospect-Hail ia from
Dunmaine? Says, abootlS miles. Hewaaaak-
ed nn what oecaaion lie was at Roas7 Sayi,
that deponent't ancle, BIr.Figetl, lived in the
counly of Wexford, and at bi* death left cla-
poLieDt a legacy, which occaeioued deponent'!
l.r^m{ there: and saya, he waa a good while
dead before deponent got on account thereof.
JoAn ZVrner sworn.
Snyt, he lived at Unnniaine ten years, and
lew lord and lady Allham: deponent wae
sencieballo the lord Angleiea, and visited lord
Allium; tbal he merried in December 1714,
and he and hia wife went to Dunmaine ami
KLaiil there about three weeks about Lent time,
and lady Altham wo* big-bellied at the tinw
he vienl there. Saya, laily Attham told depo-
nent ihe nen time he saw her, that the had «
son : afterwards aaw the bny al Uonmaiue ft
Y-caranda half old: staid a uightal Dunmaine,
Hiid had the child iu hia arms: taw Ihe lady
leailingtbe cliild acnMs the pariour: saw the
lord Allham kiaa ibe child, and Im called him
Jemmy : saw Ihe child anerwardt at Roaa,
ami It Klonay in the counly of Kildare ; saw
tliPi'hildoDceat ItosKwhen lady Altham lodged
ilicia at one Bullci's. Deponent being atked
hi>iv the child was treated at Kinnay, says, he
was drened as the son of a uolleman, and ih*
si'iiBnta called him naaier; saw him at Kin-
Liay, IS he believes, three or four tinea: tb«
(jliilj could walk at Kinnay, and used lo bo
wheeled about in a little carriage: aaw tho
tliilil afterwards at Carrickdiiff in 1730, and
lui'il Allham waa fond of tiie chUd. That inj
InrJ • ■ ■
iraa, I
I am, he
D DuUin,
liis GOn that deponent might aee him, ood the
chilJ accordingly was sent for: that be waa
then about eight yew* old, and lord Al-
thaio Boid to deponent, you were aeoeachal to
eati Artfaur and earl John, ftnd you any bo '
si-ntschal lo the child : and deponent ai '
l>Fti?vea he saw the child once after in J
hut did not know him, onlj waa told it w
and that waa about two or throe year* afW tho
mrt'ting atihetaveni; that the child bad no
(^lollies, and waa BO much altered, that although
(he people of til e town told him ho waa ine
liird Allham'* son, he did not know bow to be<
lieve il.
[rroas-exainined.^
Deponent was asked where my lord lived at
ihu lime he saw the child in Ihat poor condi-
tion? aaya, he does not know, hut believe* at
liicliicore; admitahe did hot enquuv where he
uat, 001 al>nul the cliild, iMringneard that Ibe
child bom at Dunmaine was dead many year*
ago, tbal deponent was settled near Camolin
IXfT-park : aayi, il ivax visible the lady was
u ivii child : de|>iinent was aakcil what %\t.* wo-
man my lady waai lww»,B>Vtttfk.-jwcA*>'^«'^1
4E
1 155] 17 GEORGE II. Trial in Ejeciftmt bcftveen J. Annuley^ esq. \ 1 156
vroman, and Ler liair brown : knows not
neighboura visited at my lord's, but has
colonel Pailiber there. 'He was asked if he
knew the servants P Says, he did not know one
servant by name: believes he night then know
them, but does not now recollect them: has
seen my lady's woman, but does not know her
name was f leatli : knows Owen Cavenagh
now, but did not know he was lord AUham's
iervant. He was asked if he knew Rolph the
butler ? says, he has heard the name of Kolph,
but could not tell whether or no he was butler.
He was asked if he knew the name of the ser-
vant who made his bed P says, he does not re-
member her nsme. He was asked if he knew
the name of the cook ? he said. No — or the
nurse? be said. No: saw the child at Mrs.
Butler's house at Ross, and afterwards at Dub-
lin when he was 10 or 11 years old, and in a mi-
•erable bad dress : never saw lad v Allham but at
Dunmaine, at Koss, and in Dublin : said, he
never heard till within these two years that
lord Ahham had a bastard. He was asked
when lord AUham died, says, about 17S8^-
■aya, he saw the boy in a rsgged condition be-
fore lord Altham died, at the upper end of Arran
Quay in Dublin, and heard some little boy call
him my lord : says, lord Allham applied to him
in 17 2S, to speak to lord Augfeaea to help to
maintain his son, which deponent did ; and
carl Arthur ffave deponent 50/. for that pur-
pose. That wis was about six years before bis
death : savs, that being recommended bv BIr.
Ceesar Colclough to the present earl of Angle-
sea, deponent went trcipiently to sco him, and
defendant used to entertain deponent with tell-
ing him how much he was iierplexed by law-
suits ; that deponent asked uim one day what
was become of Jemmy ? to which the detcudant
answered, that he was dead.
jyennit Redmonds sworn.
what j child was nursed abont a quarter of a mile from
seen the house upon my lord's land, and nobody
lived in the noose, but the nurse's father and
mother and a servant maid of the house ; and
lord Altham and his lady went often tbm to
see the child, and to bring htm to DnnmaiDe,
and that lady Altham had a coach -road made
on purpose to go to see the child ; that tbs
child was at nurse about a year, and then re-
moved to Dunmaine. That m the beginning cf
1717, my lady went away from Dunmaine, oa
occasion of Mr. Thomas PaUiser. That ladv
Altham had the child in her arms as she was ui
the chariot going away, and was kisnng it, bot
the lord Altham came out in a passion and took
the child from mv lady, and gave it to Jou
Laffan ; and the lady begged to have the child
alon^ with her, and cried necanse roy lofd r^
fused her ; that she sent for the child to Ken,
but could not have it as he knows of. That tke
child had gold lace on his hat, and was Ansxi
like a nobleman's cliild. &»a^8, he saw the child
(as he believes six years after) at Carrickdoff,
and the lord behaved to it as to his own child;
and deponent knew him by his face to betfae
same child he saw at Dunmaine. Deponratdid
not stay at Carrickduff ; came to my lord solj
in order to break some horses (deponent bei^
a horse -rider). That he saw the lord walkisp
atioutwith the child at CarrickduflT. Sayi,he {
has heard that Mr. Lovd who cbristcoed Ik
child is dead, and that the godfathers and god-
mother are dead.
[Cross-examined.]
^ays, he was servant to lord Altham abrict
f«vo years, before his lady came to Dunmaim-.
That she was bi ou":ht to bed about 3Ia v. Si\i-
deponent was not ]iresent at the christtfoioj; ;
believes the mid^vife (fur whom deponent mi^
sent to Hosh) is dead. Says, that Joan Ijindj
was the nurse, and that she atterwards married
to Daniel M*Cormick ; that she had a child b^
Says) he knew lord and lady Altham, and fore her inirria^c ; and some said, a sailor, v.d
deponent was servant to lord Altham at^cr he
came to Dunmaine, about thirty years ago, and
was three years in his service, and knew that
lady Altham was with child, because he saw
her when she was big-bellied, and it was the
talk of all the servants ; says, my lady was
brought to bed at Dunmaine ; and deponent was
sent ibr the midwife the day before her delivery.
Being asked how he was employed in the ser-
vice ? says, ho looked ai^ the hunters ; says,
it was Mrs. Heath who sent him for the mid-
wife (whose name was SUiels) and that depo-
nent brou<^ht her from opposite the barracks in
Koss, and that the child was christened when
he was about three week!« old, hy one Mr.
Liiyd (lord Altham*s chaplain) by the name of
James; that the godfathers were counsellor
Cliff and Mr. Colclough, and the godmother
madam Pigott, and that the nurse (who nursed
the child) was Joau l^ndy, who was preferred,
as he was told, because she had the best milk ;
that there was a bonfire made and other re-
joiciDgs ibr the birth of the child. That the
some that litrd Altham was the father of it
r Hereupon the Lord Chief Baron said, tbatit
looked odd, that lady Altham should send ber
child to bf nursed to a person suspected tu hvi
a child by her ladyship's husband.]
Says, that Joan Laudy was brought to bed
many months befoie my lady AUham; sau
he saw Laudy 's child, and that one faiJic:
Michael Dowiies christened it. That her
mother and sister took caru of her child, irbei
she nursed my lady's. That Landy's cbi^^
died at the age of three or four years, of tk
small- pux, after my lord had letl Dunmuae*
and deponent \tas at his burial. lie was askfi
by what name l«undy's diild was calledf be
said, sometimes it was calltHl Laudy, and some-
times M'Curniick. That he never beaid
Laudy 's son called Annesley. That Jan*
Landv, the nui-se's father, lived in Dunmaiae;
tliat the old house was put in repair for the it-
ception of my lady's child. That depoocfi
was never examined before his present depoft-
tiou. Says, that col . PaUiser in some discoorie
r
ind Riahard Earl ef.lngltiea.
A. D. 17+S.
[115S
ilcpoaent, tWtircil dejioatiil
tou; tu tlii* affair.
a, itie liii«>T lord and lailv Allium, aiwl
In. Sliivti llie iTiiilwitb I'llil ilepilurDl lilie
rcU Lily Aliliaici ut' a diiM sWiit A|iril or
about twenty- n ins jrars a^-o. fThia
liiNirMy-eiiilcnce, was olyectril lo liy d«-
il'a eouusel, aod lli« Cuuit aliuwcil tUe
ilary Dav^ciwnrn.
r>, »U» knew lurJ am) Uil; Althani ; tUat
■1 liictil by liie iiiiivaril to U> a acrvant
1 Allbam'i icn kc. That >.lie Vitti wiib
Allbam tbrci- monttii before alie was
;IM lo f>eC, ■nil wat in tbe raum wbtii laily
n WM drlivFreil al Dunniaine. Thai Mrs.
i ^10 lived Hi Itmia (rai th« niidivila ; and
Eedinooda uaa tent For tier. Tliai tbere
Ibrce or four piescnt wbcn Udy Althim
rnughl Ifi bell, and the rlirisltning nt lh«
mu public. Thai Mr. Anlliony Cutclough
luairllur Cliff "ere tb« Kodlalherg, and
I*'Kirvi tbe tfodroother, and Mr. Lovd
WM my lonTa cbaplaio) cbrislencd tlie
a lid tbere were great r^oiclngt tor llie
Kod pteal; of vice and otber liiguori
on Ibat nccuiao. That leiera) nuraes
recommend eil, but Joan Lnndy wni ap-
h1 uurie, ub'i was atln«ards married ta
I'Connicti, an dejMiirni lias liMrd ; (bat
aaa clean tij;lit giil; ihac tbi* wan ru-
tu be married to a aailor, nod baie tlie
by her busband.
[CraMejtamtned]
F»t *l>* lived three monlbaat Dimroaine
I thccbild waa born. Thai >be remerabtrrs
re aeen tnajor Pilzqerald tbere in a fvw
bAw lady Altbam waa delivernl. Tbal
Mil wan present nl the ohrislanioij:.
r kusw of any peraiia'* being bruugbt tu
hare but liidy Allbaui, Tbal t'la vhild
hmleoed in ibe iiarliiur abuut lliree w«eks
il> birtb, and Mr*. Il«atb waa pteienl at
ihrl(t«nin|{. Belierva Landy wm llieu
•d to ooe M'CMmick who lived at Dun-
:. Beiiuvet, (hot moJM- i'Uxtterald did liv
HUUaiiia, und Hlaid ibero tur «oi»« lime,
ibai Jnan LaiMly nnrMd tbe ohtid ; naoer
I ha bixise ; but heard frvni the sartaula
rcre Iherr, thai Joan Laudy'* bouse waa
two Kebla rrnm ibe I>i>uu of Onumalne,
hat ibe tijnc'a houa* waa flnely wbile-
A Saysi Ibal Cliarles Meagber noa
Mlar Ibea. Tbat one nMulani Itutkr,
Unrpby, and Mra. Healb wato IhCTe al
lime. Sity*, Udy Allbam w*i ahnoiil
hnura in labour ; that it waa dutbiah nlieii
'HbrouKbi In bed, and tbat kbe nas taken
day trafvrv.
Mta. Vrlxirah Anneilti/ sworn,
n^aha knew lonl Alllium, al a ^Uco nllod
^^ UiM Munty al' Eildare. Tlpl lord
hare any I Allhain Ured Ihiire, and deponent lived iriibia
three milea of ilial place, at Dallyihanniii.
Thai lord Althain was ber husband's rclalioo,
and visited deponent. Thai lurd Allhim't sna
at ibis thiie and deponent's broiher, Mr. Paul,
uied oRen lo drink hi* beallb. Ueiii|r asked if
she riiited bird Altbam at Kinnaf says, tbe
did not care le go lo tbe bouae, becau«e lord
Altbam bad bruuj^ht down a bouse-kceper
■ - Say*, Ibal Ihia waa in 1717 oi
Sbjis, her brother tisiied my lord. lleiDK
aiked if she believed tbe child was my tord^ I
lawful van f says, she believed he wa« bis Iairv9
ful Ri>o, and never beard (be conlrary. <^ay%l
(he cLild was i;>11ed James, Tlial her brulbtf |
was a sober grave i ,
not hare toaslrd lh< heallh of the chdd if b^l
bail been a bastard. Says, ibal ihe child wsotfl
with lord Abbam to CarrickdulT in llie cuunlg'^
of Calberlotiij^b, and dejianenl never hcsrd t
him allerwaids. Says, ber brother IreqiienthiS
after ihe deulb of lord A llliam, enquired whwfl
WAS beoome of ihal boy, hul never uould teBrB|V
whifili made tb^m all conclude be was dead. ''■
[Cton. examined.] ,
Sayi, she never doubled, bul alivaya belieralq
Ibe child WHS lord Altliain's too, but adn ~
aim did not hear of Ihe child until he came to
Kinoa. Says, that afUr lady Allbam cama
over a second lime frure England, she wag
supposeit tu be wiib child. Says, deponent
once vinileii lady AlllUHn when *be came to ll
country, bat ber husband soon alier dyin^, tl
deponent b«ing in alfliclioni nevar had aiqf 1
oorrespoiidcuce wiih lb* family arteTivardfc I
tjay s. Uial she berwtfdi'aiik lonl Allham's sok^ |
Ileal ih olteo witen my lord lived al kinna,
2'homat Barm of Klllkenny, alderman, colled^ 1
9Ir. Bams being called to give hisevidenOt
was asked by delendant's couusel, if lie hud not
a leaae of some lands, partoftba defeDdaiit'a
estate? i^r. Barns sdinilted be had a lease of
Si years, which was expired, ur near eipirinf.
Whereupon ln» was dijecled to by defendanfc -^
oouoael, for lliat be was iotereslad, and there* U
fnre could not give hi* testimony. In answaf^
to »iiicb, ihe oiiUDsrl (or Ibe lessor uf llw''
plaintilT said, that Ibe lease was nnt of any sf
llie land* in tbe declaration, and therefore bia
eridenceconld not be objected In.
To which tbe ilviendanl's counsel replied,
tliat though Mr. Batiis's lease was not i^' ihe
lands in questiott, yel all the eslale migbl Iw
affected by the verdict, and ibcrcl'ore as be naf
interested, he was an incnropeleDI wimeas.
To this it was autwered, (bat since Mr.
Barn* had not any l«s«e i>f ihe lands now m
dispute, he could only be supposed U .
etqiienlially, and not immrdiately intercste^fl
and tbereliire might pmperly give bis tealta
monyi and the folluwiag case waa cited W.|
sliew, that a |wr9un consequculially inli-iesUl
in a suit at law may be aduiilled lo give «r^
dencc: Two persons coming from Paragaie
Dublin iu oa< sbi^, b>AUb%'\Va«v'E v*^"*
1 159] 17 GEORQE 11. Trial in Ejectment bettoeen J. Amtesky^ esq. [IIGO
teaus fitolm from on board the said ship ; one <
of ihe persons sued the master of the ship for i
the value of the goods he had lost, and produced ;
the other person, (who hsd likewise lost his j
portmanteau) as his evidence. It was oh- !
jccted by tlie couiiscl for the master of the ship, ^
that the witness was a party interested, and
should not be admitted to give testimony ; be-
cause, if the plaintiff succeeded, the witness
would have the same title to recover against
the defendant, in which case he would bring
his action against the defendant, and the
plaintiff rice versa miglit lie a witness for him.
Vet notwithstanding the objecQon the Court
admitted the other person to be a witness, be-
cause he was not a party iu the suit, and not
immediately, though consequentially inter-
ested. Therefore the coupsel for the lessor of
the plaintiff insisted, that Mr. Barns should be
admitted to give his testimony in the present
cause.
sation he bad with lord Altham about his sob
at Dunmaine. Says, thai deponent dined and
supped there, and rcmembecs lady Aitbaai it
dinner, but not at supper. ^y*» he thiain
one Mr. Sutton was at dinner. He was asked,
if he knew my lord's agent, or any of his
servants ? Says, he did ; that he saw them it
that time, but cannot recollect they said ssy
thing to him, or he to them. Says, he ta
not remember seeing the nurse tfam.
[Cross-examined.]
Which the Court agreeing to, Mr. Barns
was sworn.
Says, he very well knew lord and lady Al-
tham. Being asked, if he knew that lord
Altham had a son ? Says, he knew nothing of
my lord's having a son, but what he was told
by my lord. That he went to Ross in spring,
1715, and lord Altham came to the inn where
he was, and meeting him in the kitchen, said,
he was glad to see deponent, and asked him
where he had been ? That he told my lord he
had been in Dublin about affairs of the dukfe
of Onnond ; uiy lord said to deponent, I hope
we shall dine together: deponent said, with
all my heart ; and afler that they went up
btairs and dined t'ogetlier ; that after drinking
some wiue, my Idrd said to deponent, Tom,
ni tell you good news, I have a son by Moll
Shefiicl(i ; deponent thereupon shook his head,
(not remembering she was my lord's wife)
and said, Who is Moll Sheffield ? My lord
taking notice of deponent's meaning, said,
Zounils, man, she is my wife : upon which
deponent said. My lord, I humbly beg your
pardon, I am sorry for what 1 said. Says,
that until my lord had mentioned she was his
wife, he took her to be a naughty pack ; but
afterwards doponent recollected that my lord's
wife v^as the duke of Buckingham's daughter;
and depon(fnt then advised my lord, that since
he had a son, to take trare of his wife, and dis-
charge all oilifr women. Siiys, he knows tlie
year he went into the country, because he
went upon hearing of his father's death. »Sa>8,
that my lord lived at linnmaine after the dis-
grace of the duke of Ormond ; deponent's
rcii^oii of remembrance is, that he was re-
ceiver to Uie duke for 4.i years, and came to
Dublin from the country, by order of Mr.
Motley, «vho was concerned* for the duke.
Says, that dopuneut was at Dunmaine the day
after my lorfl, and he had the discourse at
Boss, being asked if he saw a s«)n there P
Says, he does not know but he might, but is
aoi certain ; does not remember toy coav er-
Dcponent being asked, what moath be
to Ross ? Aifswered, either in April or Nay,
but cannot fix which. Says, be might hirt
seen Bolph the butter, but did not know Ub.
Did not know the servants Dwycr or Cafe-
nagh ; hot knew Mr. Taylor, but bad no dis-
course with him about the son. Says, my
lord did not tell him whether or no the chifl
was christened, nor what his name was. Sayt,
nolNidy was present at Ross when my M
S|>oke to denoncut, and the dtsciinrae was aftff
dinner, and as common distxiurse. He wn
askeil, how he came not to understand my lord's
expression of his having a eon by Blolf Shef-
field ? Says, he did not recollect who she wii.
Says, he is 65 years old. He was then ariurf,
how long he served the duke of Onnond?
Ho said, since ninety- five. He was thfs
asked, if he did not say he served him 45 ysan?
lie said, he meant to this day. Says, be bi
beard five hundred at Aoss say, lord Ahhin
had a son.
Southxcell Piggot^ esq. sworn.
Says, He knew lord and lady Altham ; and
that it was generally reported, wiihout aor
contradictiun, that he had a child about 30
J^ears ago. Deponent came over from Esc*
and about the year 1712. Says, there waii
great intimacy between his step- mother (Mrs.
Piggot) and lady Altham. That Mrs. Pigfoi
died about 172U or 17121. Says, he never bwd
that the child (which he heard lady Alihan
had) was a daughter.
The counsel for the lessor of the plaintiff
were going to ask Mr. Piggot, what he beard
his stepmother say about her being iriKjiuodicr
Li> the child ; but this was objected to by de-
fendant's counsel, who insisted that hearsay
was not evidence, and that the vi itness, Mr.
Piggot, ought not to be suffered to gite aoy
acc<»unt thereof.
In answer to this the counsel for the lessor
i of the plaintiff insisted, that matter of hearar,
which cuuld not be supposed originally id*
tended to be made use of in the cause (•^uch i«
what the deponent heard several year« ag**)
ou^ht to be ada)itte<1, and the rather as it «as
produced to corroborate |>OBilive proofs. Thii
if Mrs. Piggot said, she was sponsor tu ibe
\ child, it must have some weight ; tor .Vif.
- ^^ifsiTO^ could not foresee that what she said «■
, that occasion tvas ever to be given in evideficfi
; and therefore her declaration could not be lep-
poied caicuhited for any particulnr parpone.
[
1161]
and Richard Earl ofAnglesea,
A. D. 1743.
[1162
Fbat where a lease i« loit, an old reot-roll may
M giveo in pmof ; because it cannot be sup-
Mwed to bare been ileaigned for that iiarti-
nilar purpose. The declaration of a wife has
leen admitted to be ^wen in evidence against
I busband ; because at the time it was made
t could not be supponed to be ifktentled to Le
nade use of as evidence, and a case in Skia-
ler's Reports was cited to this purpose.
It was farther urged by plamtilps counsel,
bftt there was no stated rule of evidence; but
diat the rules of evidence vary according to
nrcuHMtanoes of the case. And though it must
be allowed that hearsay is the lowest degree of
andenee, yet it was evidence to be submitted to
Che jury.
It was answered bv the council for the de-
hodant, that any declaration of Mrs. Piffgot,
ivhicb was not made in the presence of the
Btrl of Anglesea, oucht not to be civen in evi-
JcBoe. That Mrs. Piggot is dead, and where
penons are dead, the law hath nut provided
Ifar their testimony, nor will it substitute a mere
jcdaration in the place of an oath.
As to a rent-roll (if it appears that it was
Rmiid among the deeds and papem o^ the
BuDily, knd not designedly left there) it mav
hm evidence in case of a lease lost or mislaid,
lo ahew the value of lands ; but not to prove
tint there was a lease in being. The nature
of the case may require such a proof, and it
Dsay be necessary to produce the rent-roll :
bat that is very different from the hearsay-
eviflence of Mrs. Piggot's declaration in the
present case.
That the admitting hearsay- evidence in the
present affiiir, would introduce a dangerous pre-
cedent, in regard the other side could not have
Ibe benefit of cross examining.
In some cases, it is true, hearsay- evidence is
admitted from the necessity of the thing ; as
if a roan receives a mortal wound, his decla-
ration at the point of death would be evidence ;
but that is in case of the crown, in a criminsJ
affair^ and in a case of absolute necessity ;
which is distinguished from a civil case.
That in civil cases there is not the same ne-
eessity, because a bill in equity may be filed
to perpetuate the testimony of ancient wit-
nesses, and then the evidence may be cross-
enmined. But Mrs. Pit^got being dead, no
declaration of her*s can be evidence, because
the defendant has no opportunity to cross-
aamioe her.
An affidavit of Mrs. Piggot's could not be
read in the present quostioU'S therefore much
less a declaration of her's made several years
ago, and which was not upon oath. If bear-
aay- evidence of this nature were to be ad-
nutted, such precedent would be attended with
evit consequences.
The Court would not admit the hearsay of
Mrs. Piggot's declaration to de)>onent to be
made nse of as evidence^ on the principal rea-
•OQy that hearsay evidence ought not to be ad-
mitted, because of the adverse party's having no
e|>pertaBitj of croii*examiaiDg. And that if
declarations of persons dead were to be ad«
mttted, they would in efiect have the force of
original testimony.
Fhilip Breen sworn.
.Says, Deponent knew lord and lady Altbnm
about thirty years ago, at Dunmaine, where de-
ponent's fatlier and mother lived. Says, that
de|)onent saw lady Altham with child at Dun-
maine, and heard by the people of the place that
she was with child ; and that about S8 or 29
years ago (a little before or afler May) there
were great rejoicings at Dunmaine for the birth
of a child. Says, that Joan Landy nursed the
child at her ovm father's house : that it was a
thatched house, and repaired on that occasion.
Says, l^e has seen the child with lord and lady
Altham in the coach. Says, he remembers the
child Joan LAndy had, and that it died of the
small pox af\er lord Altham left Dunmaine ; be-
lieves about a year ; and deponent was at the
wake and burial. Says, that the child which
Landy nursed, was removed to Dunmaine, and
delivered to Joan Latfan, one of the maids at
Duumaiue ; says, that there was a coach -road
made between Landy 's house and Dunmaiue-
house ; and deponent has seen the coach go
that road. He was asked, whether he re-
membered Mrs. Heath at Dunmaine at the time
he saw the child ? Says he did.
[Cross-examined.]
Being asked, who he heanl was father of
Joan I^ndy's child ; he answered that some
said lord Altham was, and others said a
sailor was the father of it. Says, Joan Landy
was married to Daniel M'Cormick after lord
Altham lefl Dunmaine ; and that lord Altham
was supposed to have got the child in the house
of Dunmaine, when Landy was dairy-maid ;
says, Joan Laindy's child was a year older than
lady Altham 's ; says, he was often in every
room of the house. Says, lady Altham was a
tall woman ; and that Mrs. lleath was a tall
thin woman. That Joan Landy's child was
called James Landy. Does not remember his
being ever called James M^Cormick. Says,
he does not know who christened the child.
Eleanor Murphy sworn.
Says, that she knew lord and lady Ah ham at
Dunmaine, about 28 or 29 yean ago ; says,
that she was a servant there when my lady was
brought to bed, that deponent was called to
bring up some water to my lady's room, and
that she went into the room with a bason of
water, immediately at\er lady Altham was de-
livered ; that Mrs. Sbtels was the midwife, and
Dennis Redmonds was sent for her to Ross«
Being asked, who was in the room when she
went in ? Says, madam Butler, Mrs. Heath,
and Mary Doyle. Says, deponent came to
live at Dunmaine about the beginning of sum-
mer, and remained at Dunmaine about t\vo or
three months after my lady's delivery of the
son. That Joan Lnmly waa the nurse ; and
there were several QlVMi^^xD«^%Y^t^^^^^^
1 163] 17 GEORGE IL Trialin Ejectment bettoeen J. Annalei^, esq. [1 16i
nurse's place. Remembers there were bon-
fires and rejoicings at Dunmaine for the birth of
a son ; tSiat the child was about three weeks at
Dunmaine after its birth, and then the nurse
took it to her own house ; that a little road
was made from Dunmaine house to the nurse's,
for the chariot. That one Air. Anthony Col-
cloiigh, and Mr. CUflT, were the godfathers, and
Mrs. Pigott the godmotlier, as she heard from
several of the servants. Knows that Mr. Cliff
of Ross, and madam Pigott used to come there,
and has seen them there olWn. Sa^, de-
ponent was in the house at the christeuiug, and
was servant under the laundry- maid. Re-
members Mrs. Heath was in the room when
the lady was brought to bed : the christening
was about three or four weeks aAer. Saj's,
Joan Landy had a house of her own, and be-
lieves her mother and sister lived with her ;
but does not know if her father was alive when
she took lady Altham's child to nurse. She
was asked how long Joan Landy had her own
child before lord Altham's child was born ?
Says, about three quaiiers of a year ; and that
Landy 's child continued with her in the house
after she took my lady's child to nurse. She
was asked, if the house was (he t^ame it was
before ? Savs, stie believes it was, except that
it had another room ; but says she did not
know the house well before Landy bad the
nursing of the cliild. She was asked, what
sort of a house it was ? Says, a httle house
hard by,
[Cross ' examined. }
Being asked if she did not go inio the
house ; Says, No, no farther than the door.
She was then asked, how she cnuid know that
there was another room ; says, that the room
was built as an aihliiion to the old house.
Being asked, if she ever saw Joan Landy's
(*hild ; says. Yes. She then again named the
t people in my lady's room at the birth, and that
lerself went into the room after the birth of the
child With the water, and that it was about
duskish ; and that lady Altham kept her
chamber a month or j^ix weeks, and that the
child was christened before my lady left her
loom, and was christened in the yellow room
iif) one pair of stairs, but does not know who
uere at the christenlug. Says, she was three
ot^Miths in the service before the birth of the
child, and a quartor of a year after. Sa3'8,
liiat Mary Doyle came inti> tlie service before
tier does not remember that they had any
pan :ular conversation about tbe child at that
xr.iiv, and has never scon iicr since, and knows
{.ill if she should know her now : kuows not
u-iicther she or Mary Doyle left the house
f'ljueii. Says, she did m.t wash any of my
i idy's linen. Sh«£ was asked, if she was mar-
ried 'C Says she is, and has chiidi-ec.
The examination of these witnesses having
ta!;en up all Friday till eleven of the chick at
iii^hi, the Court observed to the counsel, that
»s there wu a great number of witDesses more
to be examined on both side«, to it woald ba
impossible for them, or the jury, to contioue
hearing the cau»e through, withoot an id-
journment; and therefore recommended it to
the parties to consent to auch adjoummeBi:
Accordingly both parties readily expre«cd
their consent, and the sarac being reduced ioto
writing, and signed by the atloruies oo both
sides, the Court adjourned till 9 o'clock the am
morning.
The Lord Chief- Baron made a complimnt
to, tbe jury, and expressed his sense id'tbcir
honour and integrity ; that the nature of die
thing reqmred an adjourn ment, tkongb there
was out one precedent of adjoarning a jury w
a trial of that kind ; but as they were gentlemca
of such strict honour, any confidence might be
re|)osed in them, without danger of any pnjtt'
dice resulting from it.
Saturday, November 12, 1743.
Tlic Court being met about 9 o'clock ui tbi
morning, according to adjournment, the jury
were called over, and ausw^reti to tlieir nauM;
and then the counsel for the pluiutiffprocecM
to exaniiue their witnesses, as follows :
Christopher Brown sworn.
Says, he knew the late lord Altham aboat
S3 years ago, and knew lady Altham on ha
first comin«|f to Dunmaine about SO years agt^
and knew her to have a son about 28 or 99
years ago. Being asked bis caui»e of koow-
Icdge, says, he lived a servant to esq. Anthoej
C'litf, who wsa invited to the christening of die
said child. Tliat deponent went to DuDroaise
that day, and waited at table on his master.
Says, he remembers Mr. Anthony rolcloii;;h,
Mr. Clifi'of Koss, Mr. Anthony Cliff, anil (■«()•
tain Tench were at the christening, but Umi
not recollect the other persons. Says, it nu is
the beginning of summer as near as he can
tell : being desirud to point out the monlb ;
says, it was in May as near as he can gufti.
Says, he did not see any lady there but Mr*.
Pigott; and said there were plenty of eat«r-
tainment and great rejoicings there ; sa«9t
deponent was sent seveiul times nith niessai,'ii
from his said master, (who livod at C.'linyihid',
about three miles from Dunmaine) to einiLiri:
how my lord, and lady, and the child did : ^tr
the child afWrwards at Dunmaint' in my lady's
lap, and with the nurse Joan Landy, ainl ntntr
saw him but at Dunmaine. Dcponeut waiit'l
at table the day of the christciuiig', and LetrJ
them toast, The lady in the straw and the youn;;
christian.
[Cross-examined.]
lie was asked as to the time i;f drinking of
the above health ? Says, he can't tell, wbetber
it was liefore or after dinner. Says, be is sure
Mr. Colclough, Mr.Clilf of Ross,' and Mr. As*
thony Cliff were there, and says there were
several others at diuner, whom deponent caa'l
recollect. Says, my lady did not dine with
them. Ueard it was Mr. Loyd that duif
B]
V!td R'uharA Earl of AngJettn.
Itie cliiM, Boil remembciT tbnl he dined
\ Mj*. Iir knt'H himitrv vfW, and tbat
H il Bn*s ; saj's, Mr«. Pigoii ivai kt »be
l)«fti) of ihcr Ubie ; mjt, that ill ihnt dineil
IbcK, totiMi (if deponent'i remembnince, are
dead ; t*r>, tltnl ile|inuMl dined along wilh
■he Mtr>['iti; rememlwrs Mr, Taylor and
Itaiaji nprtmnnih to dine tber«; say*, no
woman' lerTnnli dini-d iriili deponent ; sbjb,
be tbinkii ATilbuny Uwrer wan llie biillcr, but
BWer saw him befiire 'ibal day. He was de-
■ired by drtroitsnt's cniuixcl lo name the tee-
nnta wlio dined llirrc. He tnys. 1 cannul
iMBia tli«tn, would you liavF me lell yaw what
t don't biio*r '! Says, iJe];K>ni,'nt drank seTeral
fccattbs, and wax very merry, but hnnwa not
WbrnlpaiticulBrhealtliawcredranb : tayt, ther«
manvla buntire on (he nigbl oMbecbrivten*
iaf, but bein) Iben; wn* one the tiiifht follnir-
ing, bill drjionenl wai n<il ihtre. Bein|^ osked
wEat meal there wni for dinner,; tayi, 1 don't
Icaow ; would you have nie keep an almanack
!■ my head ? aiiy«, he cannot tell tthelhcr the
diRMcnii'^ WIS aliDie or below Etairs^ aay«,
fa: did not ace the child till day of Ihcrhriilen-
laf.tior Ihe nurie ; cannot tell nbether he Nw
a^i^ Sutluii there thai day, 01 (hat he dined
iMK : taya, h« reinenibers captain Tench be-
ta^ there, liKCBiise he vraa married to his
— iHii'a liiirr, and Ihnt Mr. Cwlcloiigh waa
Ifearai becauii; lie wus one of the pjsaii'* ; eaj-t,
MlHMalcrdiihiutaiav at Dunmiunelhatnighl.
'Mag a)l« d if l.e kneiT Thomas llolph the
biMhr; myt, thnione Dwyer waa boiler, and
tttradcdthai day ; anya, lie did nut know my
hf^ woman. Bein^ asked if he aair Sirs.
^^} aaya, he did not know her. Bring
I lo irliom he dclirereil Ihe roeuages,
■'ke eatne from hia maslcr and inisireig
JberftaMioDiinmaine; lavs. be dehrared
■10 onr Mr. Taylor, and thul Ur. Tnjlxr
mot tbe ani«er« lo dejiorient. lie waa
nfced, bow he came to deliver mesugcs at-
mjni to Mr. Toylor. and nol lo (h« other ser.
VUli; lie iiyi, t>ecauiei he waa my lord's
MOUcmaii ; oml deponent bIm aya enquired (or
Bra. iteine asked if Mr. Taylor iarepnteilto
betfnd oraTive; laya, he duel not know, and
^mm Dot leen him these SO y^an paat, Ueing
■ahs) if he knew Mary Duyle, or Eleanor
Korphyi aay«. No. DeiiiK aatied if he eror
nw lady Ahliam ; uyi, Yc*, at (lie boaae uf
Zhtnnwine, in th« parlour, with Ihe child in her
•nn*. &uyi,hnbelievea he aaw the chilli about
aycaraAerwardt. 8av«. my laify woiaiull fine
dndcr woinau. RelieVcE nha was uHer ihan ile-
paoent,but tayi he nrter meaninKl her. Saya,
*hr mw thin in t}ie fkirvr, Heing uakeil if «lic wh«
■ bawbame woman, Gaya*h«ap|ieareilii» tude-
Mail. Say*, lie cannot tell the colour of her
Mift f'*f >b<il ■'"! bid nowdrr in it the day de-
fHWnt *nw her, and that he neier saw her hill
a down. Uc wai
a tall
^■n -. Hyi, ahe appenrcil to be tall by her
kraw figare. Saya, he hred with Aulbony
" aothr*! tear*: layi, thai my lord
A. D. Mix
[1166
rbited opponent's masln- at his house, but mj
lEidy did not, Dor did deponent's master^ sialera
viiit my lady. Bein^ ashed whereibe company
dined theday of ihe chrisiening'; aiys, in the par*
lour of ihe hanseof UonmBine, as near u depo-
nent ran guess, fronting the ^reat y&rd, tays, he
(Toes nut know ibat the mam hail any other nnn«
Ihan 111? parlour. Uein^ naked who wosai the
sideboard ; says some of Ihe aerrants stood
there, bni deponent dues n"l know who it was :
8ajs, Anthony Dwyer attended na bullir, aeil
deponent allendeit hia master. Says, eiery
gentleman's aervant wuilednl table, is snre Mr.
ClifTof Rosa dined there, and that one M'Gee
hia terTaiil waited on hiin. Ssya, he dne* not
remembrr the names of nil llie aerranta thai
dined with him at the aauie table; but thinks
thai at) iIm serrants dined there. Does nut
know how miuiy tables there wvre there: ean'l
Ivll psrticnlarly whether Ui.ilmonds or M'Oee
dined wilh deponent at the tatne table, tays,
(lie ser ranis dined in thecOnimon hall at a lon)r
t-able ; and deponent ninenilieis bntunetabli
there. Ssys, the hall was on the same Boor
wilh the parlour where the genllemea dined;
says, the common hall, the parlour and tbe
kitchen wi^e on one floor, lo the best of depo*
nent's remembrance; «aya, he does not know
but same dined in the kitchen ; doen nol tliiok
lie went down stairs lu ibe kitchen.
John Scan sworn.
Says, liewas servant to Ttir. PigotI, who lir.
ed within three ot four milts of Dunmaiaeabont
33 or 34 years ago (betoia Mr. Anneslry. lord
Allhani'a son was born] at a place called Tyu-
tern ; and depoueDl knew lord Allh'atn at Dun-
maine about SOyearsagv. Says, depuuent went
tor Englaod with air HaiTy Pierse's son, and air
Harry followed in May, and returned in July,
about S3 or S9 years a^o. He was aaked if
Ilia niBEler was in mourning' ; says be was, but
knows not on what occasion, tjayssir Harry
I'ierae married a daughter of Mrs. Pigotl'a.
Says be wa* sent teveral tin>es from Hia
PiffoM lo lord and lady Allham, with n
and liow-tlo-youa, loknow bow their child i)i
Bcinffuked whallherGputatiofiof the c< ^
was, in relation to my lord's having a son;
s^yi, it wai commonly undersiood hy all tbe
ueighbourbood, that my lord AlthaKi had ■
son by his Udy ; says, he has seen the cbiU
brought l>y ihe niirte toMrs. I'igott.
|_Croas-«xaminoil ")
Knew tbe honse at Dunmaine very well ;
nys he nscd to gts thtougih the yard to t)ie
kilcbrn. Being' isked if llie kitchen was on
the same Boor niih the parlour: says, it iaoot;
that ilia under the best pnrlonr ; says, tbat de-
Conenl was bom near Unnniaine-fniitte, and
new it. Saysil is about luor Iflstrpsgoin^
np to ihe front uf the house. Kays, tbere n a
lltlje parlour below siairt on the left-hand, •»!
that the other parlour is on the rif^ht band m
you go in. Says, the commun ball was be
tweeu Ihe kilcbrn imi41.WV«*.*. ^^mw . *w^■i
Id^.
1 IG7] * 17 GEORGE 11. Trial in Ejeptment between J. Anntdey. esq. [1168
asked if the hall where the servanUi aseil to
dine was on tlie same flo<ir with the parlour ?
says, No. That when you came into the house,
it was into a lubhy or entry, which deponent
belierea was about 5 or 6 foot broad, and 16
foot loncjr. Says, deponent was servant to coun-
sellor Pig^ot ; and that it is about 28 or 29
\ear» ago deponent went to England, as near as
he can guess, and continued in EngUind from
the latter end of March till the be^innini; of
July- Says, sir Harry Pierse was m London,
and lodged at St. Martin's. Can't tell whe-
ther queen Anne was living or dead then. He
was asked, if he ever was in Yorkshire P saySi
he was not. Said, he landed at Parkgate, eo-
ing to England, and look shipping there at his
return home, lie was asked, if he took no-
tice of the proclaiming of the king ? Says, he
did not. He was asked, if he could tellwhe-
ther the rebellion of Preston was lie fore or
afler his going to England ? Says, he cannot
tell. Says, he never was in Enj^land but
once. Says it was alWr his return from
England, that lord and lady Altham's child
was born. Says, he cannot tell upon what oc-
casion sir Harry Pierse went to England.
Says he cannot recollect whether thrir return
from England was before or after 1713 ; but
as near as he can guess, it was about 28 or '29
years ai(o. Says he lived in Mr. Piggot's fa-
mily for 7 years ; and that he lived there about
a year, or a year and a half before deponent
went to London. Deponent mentioned al'ter-
wnrds some gentlemen with whom he had liv^d
a servant.
An application was then mai!c to the Court
by one of the defendant's counsel, for liberty
to call one Mr. BVelian, soverei<;n of the town
of Ross, to view this witness. Brehan accord-
ingly appeared, and viewed hiui, and said he
knew him ; and Scott said he also knew him
very well ; and then Brehan was ordered to
retire.
Christopher Broan was ordered by the Court
to be called again « to be examined as to the
situation of the house of Dunmaiue^ and to
tell, some of the servants' names.
Says, the house of Duiimaine had a front
and a back door ; but does not recollect whe-
ther he went up to the frunt part of the house
by steps or not ; nor was he sure whether or no
tlie gentry dined in the best parlour. Said, the
parlour he spoke of was the room on the left
hand going in, and that the kitchen was on the
same floor with it. Says, he remembers An-
thony Dwyer lived there in the quality of a
butler. Believes one John Lambert was there,
and one Uolph under-butler ; but does not re-
member Owen Cavcnagh there. Says, that
Martin Neefe and Mrs. Heath might live there ;
but does not remember them. Believes he
spoke once to Anthony Dwyer to deliver a
nicasage. Says, that deponent lived at Dun-
nuine with Aaron Lambert, es(}. before lord Al-
tham lived at Duomaioe.
Joan Lmffan sworn.
Says, titat she knew lord and lady Althan.
That deponent lived at coluoel Dean'a in tbe
year king George came to the crown ; after-
wards deponent left that service, and went for
some time to h've with her frieods, and in tbe
year following went into tord Altham's service.
Says, it was not a whole year between tlia dme
of her living with col. Dean aad coming tt
lady Altham's service. Does notremcmba
the month she came to lady Altham's, butssyi,
it was in the year 1715 :' and that she mu
there in the station of « chamber maid, tad
was employcil to attend lord and lady Althtn's
child (who was called master James Ani^eslev)
when it came from the wet-nurse ; and that be
was kept like a nobleman's chiU. That tbe
child was about three or four months oM
when deponent came to tbe service, and
was about a year and a half in depooenfi
care; (hat liiy lord and laily were very
fund of the ehdd, and my ladv used to wad
for him up in a morning and take him inio
the bed, and generally called biai ray dcir.
That allerwards the child was taken from de-
ponent and sent to a place called Kinna, in the
county of Kildare. That de|M>nent did not go
with the child, but remained at Dunmaine ; tial
the butler (whose name was Charles Field)
was sent w ith the child. Says, that lord asd
laily separated in a very angry manner oo ac-
count of Tom l^allisdr, (when the child «■
almut 3 years old ;) and deponent was presnt
when Tom Palliscr's ear was cutoff. Sajf,
that after the separation lady Aliham went froa
Dunmaine to Ross, and lodged there at ooi cap-
tain Butler's. Suys, that she was present whea
my lord and lady parted ; that she saw mj
lady at the door, with the child in her arms;
that my lord r^me out uf the house in a gml
rage, and aske^l where his child was ; and U)ioa
being told that he was with his mother, he raa
up to her and snatched the child out of htf
arms: that my lady beggeil very hard ibe
might take the child along with her ; but that
my lord swore he would not part with his child
upon any consideration ; that my lady iiDtlinr
she could nut, prevail, burst out a crying, aod
h6g't;e<l she might ut least give the cbdd a part-
ing kiss ; that my lord, with some difficullji
consented, and then my lady drove away w
Ross : that as soon as uiy lad}' was cone, my
lord gave the child to deponent with a strict
charge to deponent and to Mr. Taylor not tf
let my lady have any access to hiQi : but s-iyii
that notwUhstanJing these orders, some of Um
servants found means to carry the child pn«
vately to Ross to sec my lady, which when m/
lord was told of he tlew into a very great pai-
sion. Says that the child was carried to Kai^
without deponent's privily, for that sometiflMi
deponent used to go to Waterford to see a bfs>
tlier of her's who lived there, and some otbff
friends ; and in her absence some of my loid^
servants, for the lucre (as she believes) of (Trt**
ting a piece of money from my lady AltliuSi
9] end Rkkard Earl ofAn^
Ihoar opportDDities to carry the child to
Ko-B. Says, that the Cliriitniu etc,
the Reparation, the pre«ent earl ofAnf^e-
irba was then captaio Anaealej', wan at
naire boose, aod nut weiag the child, said
poiient, H'here ii Jemmy, or where ii
rother'n child ? Haw dii] hji tnuther 1>C'
i[ parting will) liiin ? Tu n liicli depimeut
ned, that my lady liad br);ged iif my Inrd
hard to hhTe the cliild with liur; where-
the iiresent earl made iiK ol' no extraor-
1 oalh, and laid. That lie wished hia bro-
lad kept none of thK lireed ; and thatwhcD
inwd awav the luother, lie should hare
nl oft' the ctiitd, and sunt them iMHh la the
-1. Says, iliat she is of a gnoA liimily,
ruutd nut haie nailed on (he cliiM, if ihe
idieTcd bioi to be a baatanl.
^C ross- examined.^
fi, ^eat notice was taken nf the child bnth
y loni mid lady. Says, she sai* the child
atiately alter ilie came into the service,
aweet uliey and broth were made eTery
I toy (ord'» [muse lor Juan L.indy the nurse,
rMU meat canalantly a«ut to her haute,
h was about a quarter ot' a mile Trura Ihe
tofUnnmaine, and the nurse was chained
) nt Kri'cna ar salt meat. Saya, that my
heraeTt' would ([o aumetimes in the eTcti-
1 the nurse'it ami carry the child home.
, lonl Uonneraile was at Donmaiue altotit a
It when deponent had the care ul' the child,
Dok ilrlighl in plsyitiir with him, and once
onta handful ufgold thatthe cliild mi|{lit
bis choice of some of the pieces. Snys,
a giarticular as Id roy lord Donoeraile's
' at Duniuaiiie, because she parliculurly
inbera bin ruumn^-tooinian's Tunning a
for six goineaii; aayi, lonl Dunneruile
. be went away, look Khippln<{ hi lially-
(• sea-port near Uuninaine.)
1%, ibat the child was always nr ffencrally
a to the ca[ii|)any that came tn Dunmaine
I. Deponent was asked, if .lira, tiiiiard
tin Gill'i>r.l'H wile) TJsited lady Althnm?
that as near as she can puesi, deponent
cr three or lour timrs there, hut that hlie
wt so grand n wonian as to IfC intimate
my lai^ ; dots ni>t know wh'Ehcr Mn.
■i saw toe child at Dunmaine, lli« tiini; of
imiDg tliere bein>; muob out nf dtrponent's
try. Believes y\n. UifTinl lirinl al.'.nl ■
rom Dunmaine ; and mii(bt vi^it my I.idy
; the cliild was under deponent's care;
thai Mrs. Gilfard did not viiit Diintiiuiiie
ihe separation, ^mjs, that the child wiw
■ery fine, and was [;i-ii(r:illy dr(<!s«4 with
riet veliel bai, while li-ailitr and lai;ed
when he lued tu b<' shi:"!! to 'wiiipanv,
id cambric and liollui.d lliii.:". of all km Ji,
that one Nancy llniir »hh Imjintry
Being asked, if .Mrk (Jiltorl .(iiii-d wi|||
rd and lady hIk-usIk: riiii.e >Iiiri'f S'a^|
elieres that sijc did. Mn: tfa-. a-.fcp,|^ j
Lambert liintd my U'ly' >>■)», •he i\
rcquently, and that ftlik. I'l^c'iil ,iiid jtln
U XVJl.
Boiler Al alaa rrtnanrtlv •t«i
Bskad,iftheebiM.*nsstM>i
Saji, it WM nAn ^hnm ;ii
wel-nune, aT'lnf-nunr. .*«n
shewed the ehiU in .hn (enl
accident of the sepanlion b»l n-r-:*r i»it'>>^ni^>t _
Says, she remembers that the lU/ t-* «•■' * *^
cut off, she bad Ihe child ia her iia.-.'l. a''--l '-•e
child sbeirtd deponenl some of ihc blon-1 w i->^k^
hsd fallca from Pelliaer'aearnn the fft-iii-" 5
says, he shewed it ber by uninUni; biA iin3*»-
to the fTound where •ome drops nl Vinad «<>t«.
She wa* asked, if Hr. Thomas FaJliser aaw tb«
child ? Says, be did. 8ays, thai tbe immrnn^
of mj kinl'seiittin|[off Mr. I^Uoirf sar. ▼»>
that some of Uie famUy had inade mf iv>f
jealous of biot, and eontrif ad iliat aanniif ^*
(ret him into mj lady's cbamiv ■*■« ^W "■''
in bed and a^eep, a«4tkM*ev9n>sei>' "'T
lord, who bein^ by Ibis m^V^csHvm'^ '"
his suspicioDB, ortknrillHMbsrvMJrai,'-'
geil out of m^ la'lj'abiitf^ta^K'ar iiio sor-
vants, and with aMHrf^a^if .■nnin .lirti
through the bodjibB^MMHiaiR^w^!,
sod beji^ged ujrlariiasiiiB'flTCTBii i..-,
and only to cn.tKMmmwmfitt'.\i't i-^ -^ ■
and I liinlj aifc^^ is . 1. .
cutoff bia e^,«AMAAiBilMr^i,i,,
the ytllow-rast. ^m^ mttaau ^ ' . ' '
\ then
.liislaw-
that luril
y, 1»I>"|H
eiu:; shew'
n t.'ouTi, t
i th<' sain
'puuent tail
ntical per!W>i
.ked how ih
le had n. la<^(
ht«, and drji
1 UsA >iv*.'& '
1 1 7 1 J 17 GEOIIG E II. Trial in Ejectment betrveen J. AnneJey, esq. [1 171
htv a mcssaic^e, having heard fas she beliefes)
that she hail livMJ in lord and lady Altham's
<(ervice ; that thereupon she went to hino, and
he asked deponent, it' she knew of any child
that hird and lady Allham had? that she an-
gwerefl hinrt, she did know of their havingf a son
called James, but (added deponent) what siji^ni-
ties that now ? he was Ion); since transported,
and I believe he is dead. To which Henderson
jeplied, that he wus iiut dead, that he was very
well, and then in liundon. Says, that one
Bridtret Hoiilet, Joan Landy, and
Now Ian, went in the same ship with deponent,
filie w^s asked it' she made any afEdavit before
Mr. Uoherl Snow of ^Valcrtord? Says, she
never did, and that he never took any thing in
firitingf from her in relation to the child ; but
sa^'s, she was &i\iorn before a master of Chan-
cery in London, and examined there. Says,
that rite chief uf her business to £n^;)and was
to see lier iieplieu «i, who were sailors on board
snme of the kin;;'s ships, ezpectin<>; to get some
ninney from them, and that she did not go on
account of l^Ir. Anuesley. Says, she never
received a penny for giving her evidence;
says, that Juan Landy, Bridget How let, and
deponent went from Bristol to London with
Henderson (whom thcv met at Bristol) in a
coach and four ; says, siic paid a crown for her
passage to Bristol, and a pistole for her coach
hire to London, all of her own proper money.
Believes Henderson pitid lor the rest of the
company, and that he paid all the bill.? and ex-
penccs on the road to London. 8.>.>s, slie
would have goi!e to London, if KeudersiMi had
not a[)plied to her ; says, that Henderson took
lodgings (in the seme street where he li\es) for
Joan LariHy, Bri«lget Hf)xvlft and deponent,
and believes that he paid for Ihrin; saysHm-
dcrson told dq^nncnt, t!int if she would live
wiih him, he wo;;!;! ^ive her os good u aires as
any in Irehml ; tliiit arcordingly deponent
hired with hir.i rr; a s« rrant f(;r about a year.
S.iys, t'.ial one !Vf r. Tate r:,on an attorney, and
Mr. M'Kcrchtrr spuk'j to her in Ijondou ubuut
the present afiuir.
[iMr. Hiiroii r.Tmintcne}' said, he knew 3Ir.
ratci'son, aiiu '^:*\f. him a go.td c-liurdcter.]
Deponent v ;;s ?-;kr-.!, if Joan Landy lived
a»»v tiiO!^ at Iiind:?rson's? S.:ys, she did
0'« I;iicli( n n :•."•!. Mi" \vas asked what con-
nliiuii Joan f.:)M'!\'s huiise Mas iu at the
lisiic oi' Ik r i:-.-:>I:.ji: o:' li.e child? JSays, it
V :vi put i;tlo li-^ht c^iiriloi table order, tit to
rirrl\.'> !!>;. lor i and lady')»c!illd ; says, thatshe
rliil:!".-. tijio rl(»{lirs were always k«pt at the
great house of Dunmaine, to dress him in
when company came to my lord^s Says, that
alter deponent left my lord's service, she went
to Jvinna, in the county nf Kiidare, to get her
wages from my lord, and there she saw the
child, which was then about four years old, in
the care of one Mrs. Mary, and says it wu the
same child tl^at had beeo under deponent's care
Bt Dnnmaine; laF- **»* ^««b Lnndr bad a
when she was taken to nurse Mr. Anoedej,
I and says, thf^y called the nurse*8 child Jarod
Landy ; says]^ she heard many yearsago ihalbs
was dead ; says, that it was reported that Jttn
Landy was married to a sailor, and that the
child was his, and that he was gone abroid;
and afterwards it was said to be my lord's chiM ;
but says, that my lady never heard of my k»nl'i
iK'ing the father, till ufler she had parted from
him. Believes, that if niv lad^^had known it
before, &he wotdd never have admitted Joia
Landy to nurse her child. Beiug asked, if
she had ever seen father Downs at Dunmaine
house ? says, she has. She was asked as It
her religion ; suys, she is a Roman.
Thomoi Brooks sworn.
Says, he is a piece of a surgeon, and b tboul
43 years old, and that he lives near Farree in
the county of Wcxfbid, between Ross anJ
^Vexford, within three miles of Dunmaine:
says, that about twenty -eight or twenty -Dine
years ago, a inr<%i'ngcr came from lord A'tbaa
to deponent's t'aiiu r*s house (who was a farowr)
to fetch deponei:t, in Gfrtat haste to oiy Inrd'i
house. Cannot recollect particularly the tiac
of the year, but to the best of deponent*s know-
ledge It was in the spring, for the boaghs cf
the trees were green, and It w as in the evema|{,
and light enough for deponent to do his bn»
ness ; say*;, that when deponent came to Dai'
maine he saw 31rs. ShieU of Ross (the midwifr)
witli whom deponent m as acquainted, and sk
shewed deponent the way into lady Althao^
bed-chamber, and deponent was ordered tf
breath a vein r>r to bleed my lady, which ()^
poncnt arc'ordin^ly did. He was asked bnw
he knew she was lady Altham : says, shew
railed my lady ; that t-he was sitting in bff
bed, andns deponent supposed very unvdf,
for she cried, O my (Jod ! several times. Tte
immediately after deponent had doue bit 4bIJ
of bleeding her, he quilted the room and wa
shewed inlo another, w here defionent got Dflt
and drink, and refreshed himself: says, tint
deponent staiil in the house a good part of tke
night ; and that some time after deponent M
eat and drank, Mrs. Sliiels came down to tk
room smiling, and said, the lady was delirottf
of a fine ihoy. lie was asked, if heknrt
Mrs. Heath ut Dnnmaine; says, hedidiMti
and that he had no business to take notice stt
was in the house when he went on sudi kO'
sions. Says, that the messenger caiueftc**
ponent to his father's house, and desired W
to go to my lord's house at Dunmaine ; bu**
not say on whiit account he was wanted there.
[Cross-examined.]
Suys, he went up one pair of stain to ■/
lady's room. Says, he saw the servanu gfl*
and fro, but did not see my lord, and iras i'
paid. Sii3'f?, that he went into the lw*J
Btreetway s. Says, that he knew one Rrtlinw*
a serTant in the house. Says, it was » jy
that wore a 1 1 very that came for d«|ius»
. Bdn^ asked, if it vfai nsuai to Meed
H7S]
and Richard Earl of Anglesea.
A. D. 1743.
rii74
labour ; tiyf, he was not tolil she was iii la-
boor ; and that he did not see any signs of la-
bour about her. Says, he staid a i^ood part of
the ni||rht in Duntnaine house. Says, he hied
my latl V in the arm, hut cannot tell which arm.
Says she asked deponent no questions ; that
ihe reached out her hand hyMrs. Shiels'sdirec*
tiODS, who held the pewter-plate, in which the
blood was receiTed. He was asked, how many
>uoces of blood were taken from my lady ; says,
lie cannot tell the quantity, for he bled "by
rueas ; that the midwife bid him not take much
Clood. Says, he cannot tell uhat hour the boy
»me for deponent. Says, hehroug^ht no horse
or deponent, but deponent (;ot one for himself,
lod ro<le hard, because the boy told him he was
(ranted in fi^rcat haste, lie was asked, if the
ady tvas dressed ; says he took no notice whe-
lier alie was dressed or not. The hed-clotiies
rame up to about her middle, she had a {{own
ID, and was sitting in the bed, and there were
,hree or four people In the room.
He was asked, if Sutton the surgeon was in
Ross at that time ; s:iys, he cannot tell. lie
vaa aiiked if lady Allhum was a fair woman ;
AjTS, lier person is greatly out of his knowledge,
or. be dill not take much notice of her, but says,
ihe was not fair. Says, deponent had bled some
if the serf ants betore. Savs, he does not
now whether he had heard of the queen *s
ioAtb before that time or not. Says, he never
leard any lady called lady Altham but one ;
IM teen her before and after that ti'.ue, hut
SODOt tell bow long before, fur he nerer book-
id It. Says, he does nut know but he saw her
aore than once before he bled her. He was
laked, how he came to know she was lady Al-
ibam ; says, she was called so. Says, he has
heen in all about three times at bimmaine
banae. Says, he bled many people before he
Hcdlady Altham ; that he is now aliout forty-
C^rht or forty- nine years old, and has prac-
ilKd surgery about twenty years ; hut says he
Ibmw how to bleed when he bled my lady Al-
tban ; that he learned to bleed of one Graham
C*bo fifed in the Queen's county) but did mit
■ttfe histime to him. Says, he does not know
vini age he was of, when he was taught to
Ked, but when he bled lady Altham, he was
■Mr bis manhood. Being asked if he icniem-
^9 all the persons whom he bled twenty
youi ago ; savs, he does not. Being asked
u he ef er bleu any other woman in labour ;
^a, he bled madam Sutton when she was in
ttour. Says, he received a summons about a
ight ago, to give bis evidence in this
Says he does not understand anatomy.
BIr. Lawrence Miuet sworn.
Sajs, he knew lord Altham, when he lived
^ Kinnav in the county of Kildare, about two
2^ti and a half from the place where deponent
w^% nya, deponent, when about 17 or 18
tapMoldi went to school to a place called Dow-
■■W%liii»u, and that there was a boy then
tqtlM aame acbool, whom the scholars
\ Jmi AWmib*! toil. Deponent tbinki
the child could not be less than six ve:\rs old»
and says he continued about a month there;
says, the school- master's name was Bryan
Connor ; that being a Papist he was perse-
cuted by a Protestant sc It ool- master in the
neighbourhood, who wanted to banish tarn from
those parts ; that some of the ueighbours being
concerned that the poor man, who had lived so
long among them, should be banished or dis-
turbed, requested my lord to take him under his
Crotection. And deponent says, that having
ad the honour to hunt sometimes with my
lord, he took the opportunity to speak to his
lordship about it; to which my lord answered,
that he had been spoke to on Connor's Iwlialf,
and intended to send his son to school to him,
which, he believed, would hinder the other
school- master from disturbing him ; that ac-
cordingly, at the request of the neighbour-
ing farmei-8, my lord sr:it his sou to Cnu-
nor's school: says, he cannot remcinber the
year that this happened ; believes it mi^ht bo
some short time after iiiv lord came to live at
Kiiinay, but does not know either when my
lord came to Kinuay, or when he went away,
but thinks he knew his lonlship there a year
andahiilf; that deponent is about 42 or 43
years old ; says, that lord Altham continued at
Kinnay after his son came to Connor's school.
Being asked where the child dieted and lodged,
says, he does not know, but from hearsay, be-
lieves it was near Kinnay ; says, he does not
remember the hoy's being attended with a page
or a footman, but says, lord Altham used fre-
quently to call for him himself at the school.
Says, deponent generally called the boy young
lord Altham, but did not know how he was
oalled by his father ; says, he saw Uuh at Kin-
nay af\er be had quitted Counorl school ;
savs, that deponent and |Mr. Connor the
school -master used, on Saturdays, to go a fish-
ing near my lonl Altham's house at Kinna}',
and my lord met deponent and Connor twice or
thrice at the river a-fishing, and invited them
into his house, where deponent saw the boy ;
that lord Altham brought him into their com-
pany, and introduced him as his son ; but de-
ponent could not distinguish, at the years de-
ponent was then of, ^^heiliiT it was as his law-
ful or unlawful son ; but remembers that lord
Altham once said to deponent, Lally, I*- hope
you will see this boy earl of Anglesca ; and de-
ponent i^ays, he was reputed in the ntighbour-
hood where lie lived to be lord Ahham'sson.
[Cross-examined.]
Says, he has heard that Mr. Annesley was a
son got of my lady when she was away
from my lonl — Mr. Annesh^y bein;; shewn
to deponent on his examination in (^*ourt, to
know if he could say he was the same
person he saw at Kinnay, deponent said,
he could not say he \t as the identical person,
it being so long ago. Being asked how the
child was clad at scliool ; says, he ha«l a laced
hat, and was in a coat and breeches, and d«fv<^
nent takei hiuk to Vmn« Vy^cik^M Vnia ^^qaw ivL
1 175] 17 GEORGE II. Trial in Ejectment between J. Annedey^ esq. [1176
years old. Deponent beiuj^ asked what liis
own ag^ was at that time ; says, he believes
lie was alK>ut 16 years old, for that by tlie re-
Sutation of lits family, he was 13 years old last
lily, and deponent has been married 13 yeara
last April. Being asked if he was at Connor's
•ohool in the South-Kea year; says, he re-
members to have heard of the South-8ea year,
but does not think he was at Connor's school
then ; cannot say how near it was to the time
of the rebellion of Preston or the death of queen
Anne ; bat says, that by computaiion he roust
then hai e been about 17 years old; says, he went
to oilier schools besides Connor's school. Being*
asked if be might not be SO years old at that
time; says, he does not think he was; re-
members he was g^wn up. He was asked if
lord Altham was free and familiar with the
lioys who hunted with him ; says he was. De-
ponent was then asked again, whether he was
16, 17, 18, or 19 3[ear8 old at that time ; says,
he cannot be certain whether he was 16 or 17
years old ; says, he went to France in 1723 ;
that after leavinp^ Connor's school, he went to a
school at a place called Nauss to learn the
mathematics, and that he did not go to France
till some time after his leaving that school.
Deponent was again desired to ascertain the
time of his own age when he saw the child at
K-innay ; says, he would willingly do it if he
could, but that it is a long time ago, and there-
fore he could not be exact; but says, he is
sure he must have been 15 years old at least,
liecause be could wade through the river.
James Walsh sworn.
Says, he knew lord and lady Altham, and
kncnvs that lady Altham had a child ; savs,
there wa8 some dispute between them whicli
caused a separation ; and thereupon lady Al-
tham parted fri>m Dunniaine, and came to iodoe
at the house of Mr. Hutlcr, (who was depo-
nent's stepfather) at New Ross, in the county
of Wexford ; says, that he saw her the day she
raroe there, and that she was in very great
trouhlc and affliction, and shed abundance of
tears ; tint she coni|)lained lord Altham had
used hrr so ill, that, if it were not for two con-
siderations, the cruel treatment she had met
with would break her heart. Deponent being
asked whether he knew what these conside-
rations were, says, that my lady said, one of
them was, that she had a tender, indulgent,
and best of fathers, (the duke of Buckingham)
and the other, that she had a promising young
fion, who, she hoped in God, would be acom-
Ibrt and support to her in her old days.
[Cross-examined.]
Bc\i\[r nskcd if he ever saw that son ; says
he cannot say he e^er saw him. Says, this
^conversation was about 27 years ago, and
passed in the presence of deponent's stepfather,
and mother. Hays, the day lady Altham left
Duumaine she came to Ross, and it was on a
Sunday, and deponent saw her ladyship that
^Mjr couuog up to Mr. Batter's houie^ tays,
\
be had heard before that time, that my M
had a child, and that be was Barted at Don-
mainc ; says, he has been told that the cbiU
was brouglit to Ross to see his mother, mj
lady Altham, and deponent compotes the
child waa then aliout two or three yean oM ;
says, he does not know Joan Landy ; ayi,
ladv Altham came to Ross in a chaise or chiir,
and to the best of deponent's remembranoe, it
was drawn by one horse ; and fancici ber
waiting- maid, Mrs. Heath, came akmg with
her ; says, it was before dinner my ladv hsA
the beuire-mentioiied conreraation with de-
ponent, and that my lady dined with depoocsi^
ste^i-father and mother, and deponent^s tbn
wife; says, he saw lady Altham at Hoes at
that house very oflen after that day; siji,
he took lady Altham to be the duke of Bock*
ingham's daughter ; for deponent's atep-ftdw
having a suit of law in England, mentiooedit
one day to my lady, and desired her iaterert
with the duke of Buckingham, who, he waA,
might befriend him in it.
Mr. James Cavenagh sworn.
Says, he was acquainted with the late kml
Altham, when he lived at a place called Ctf-
rickduff, in the year 1721 or 1722, or then-
abouts, and was his neighbour there, abooti
year and a half, or two years. liJays, lord Al-
tham had with him a child who was deemed Ui
only sou ; that the child lived in the house wilk
his father, and deponent often saw him thefv,be
generall}' visiiin;; my lord once or twice s
week ; says, he always observed him very
fond and respectful of the child, as a pamC
should be ; sai«l, he never heard my lord nj
who w:iM the child's mother ; but never hu
any doubt of his being legitimat«>, or ever n
much as heard that be was illegitimate tiB
lately. Deponent particularly rememliers, tbtt
one day my lonj, the child, and this dcpe-
nent were walking in my lonl's garden at
(^irrickiluff, and fleponent taking notice of ibe
youn:; gpntleman. said. My lf»rd, master ii
grown a fine sprightly boy ; I hope your lord-
bhip takes good care of his education ; to mhkk
my lord said, that he had a tutor in the boofe
to instruct him, and declared to deponent, that
if that l)oy lived, he would one day or other be
earl of Aiiglesea. Deponent says, he ibsi
took the child to be eight or nine years old;
says, my lord usually carried his son abroid
wiih him, to visit the neighbours, and brou|[lil
him to deponent's house particularly, and the
child was by every body that lived in the neigh-
bourhood treated and dcemeil as lord Altham^
lawful son. De|KMient never saw the child
aller he leA CarrickdufT, to the best of his re-
membrance.
[Cross-examined.3
Sa^'s, he does not know when lord AlthM
parted from his lady, and never heard bim left
about the child's mother at all ; says, be k^
came acquainted with my lord at CarrickdiC
but cannot tell whether tbia wu befbraor ate
W)
and Richard Earl ofAngUsea.
A. D. 17«.
[H7*
Snnth Sea ynr ; laya. be viiiteil tny lord
I fMllftiiaii 1 Bsj «, uiv lord likewiiie vUiled
. Cliarlm. Bjrne anil Mr. Bridgcrs, tvlio
id in llie nfiglihuurhond, and one Mr. Ue-
xy. OepancDt uya, he olleu anw my lord
I Ifaa boy git Kbaut puliliclj' logeilier, «Dd bas
II tbA child wiib liitu ■! puliliu niettingi.
Jamti Denipst/ sworn.
kyi, he knew lord Ahhani at CarrickduS', in
jtnr ITUI, and Ihal my lurd bud a edii ;
t, theocCHiou or lii4 kniiwini; it wasaafal-
s: one Mr, TliouaiOxenscBme lo dcpn-
it, nad pni posed loliim lite takin|{ care ol'hli
bbip'ssnD, ill qualiiy of a lutor, Ibr which
MieDt MU8 to liBte eigbt pounds ■ year ;
I ilepont'nl agre«d to the pronosal, and au.
liUEly wetit and Inslruclrd tLe trliild at my
I'k bau!<e Bl Carrickduff for about hall' a
r J bat deponent fioding by the neighbours,
til would be more ail'antagieous for depo-
tUleach Ihe child abniad, on account or
Ma^ ihe nei|{hliours' children ; depuoeot
lied to his lordsbip (nt I ear e in leach his con
Md, to which hit lordihip agreed, an<l tbe
III wt« allentled to Ibe public acliuol, liv one
lb lordihip's seriiuts; says, the child coii-
wdnnderueponent'acere fornearlwoyeara;
■, tbe people called the child tbe young
I, ami that my loril acknowledgnl him to lie
•M ; «aya, the ynuug tfentlemaD wa« kept
lecent apparpl ; that he had a fjitian caul
n at *cbaol, and a coal of scarlet cloih on
|r days and stale days ; says, that deponent
firi him (o read English, and that the child
I tlieu about aeven years old ; says, that
Hi a year ago, as Mr. Annesley (Ihe lessor
be pltintilT) was returning team the county
IVexfard to Dublin, in company with Mr.
Crirober, one Mr. Mnrk Owtns, and other
Ikmeo, Ihcy called at Hacket's Town in
county of Cniberlougb, near vrhtch place
roenl lives, and deponent happened to be in
a«l room to iheni in the inn, where they
up i and deponent was sent Ibr into their
IfiiDTi and when deponent came iuto the
B, be was desired 10 look about the cnm-
y, to ice il' he knew any orthem ; aayti, he
Rnlly hnen- Mr. James Anneiley, and
IWd U biu>; and said. This is James Aifv
lay (lord Alihim's son) il' be be living, who
I imder my care for some time ; whereupon
I AnDcaley kissed deponenl, nni) asked btm
rtlier be had heard o) his lieiug in Ihe king-
)| 10 which ilepoueni replied, that he had
; *ajB> Mr. Anaealey ineotiooed to him
It grrnt hardships be bad unilergone cince
raa under deponent's care, but deponeot cnn-
remember what particular harilsbips he
ilioned ; aaya, be never saw hiin siaoe Ihe
t h«i teiR at CarHckdtilT before lh:ii day, nor
■leponenl informed before that time of his
^itt lito kingdom; suys, lord Aliham re-
iHMndcd him tu deponent's care as hia aoii ;
Lb« bas beard Mr. Annesley wa» trans-
BWtWrt 15 years agn nui of tlie city of
■B^HMMnt left Carrickduff br'ibr*
lord Altham lell it. — The deponent was de-
•ired to look about in courl and Iry whether ha
could see ihe person nhoni he said to be lord
Altham's ton, and to whom he was tutor ;
whereupon (niter looking about) he pointed to
Mr. James Annestey, and said, be nns the
very person 1o whom he i^as tiiMr, aud the
same person he saw in Hnckel's Tuwo albre-
spid, m company with Mr. M'Kercber and
[Cross-examined.]
Says, he saw Rlr. Annesley at Cnllen's,
iuDkeejier at Hacket's Town, and that no ^ _
aon ilesired him lo ^u lo the house, but depooa
ireat lo eat a sleak of beef for breakliisl, and
buew not of Mr. Annesley or his company be-
ing there ; nays, be lires at Ballymacooly uear
Hacket's Town; says, he belieiesSlark Owens
(one oflhe company) enquired from the woman
of tbe house if deponent was in low^, and that
it vaa upon that occaaion depooent was sent
for into the room to their company. That de-
poneut was told, Ibcre was u peraon who wouM
be glad to see him ; says, be belieit^ Mr,
Owens might lell Mr. M'Ken'hcr alioui de-
Knent, for that he never knew Mr. M'Kercher
fnre that day ; suyi, he knew Mark Owena
about SS or 96 years ago ; that Hark Owen*
oflen mw deponent at Carrickdoff', and was
willi my lord when deponent was Inter to the
child; ssys, Ihal Mark Owens was in the room
with Mr. M'Rercher and the rest of tbe com-
pany when deponent went in ; says, that he
did nol see him for two years before that time,
nor ever hod any discourse u ith him aboul Mr.
Annesley. Says, he never beard bttiire he
saw lar<l Althaiu'sson, that he wosinihe king-
dom; says, it was the woman of the house
that brought deponent into ibe company, and
that it was Mr. M'Kercher asked him if be
knew any one in company ; hsya, Ibal be
did not know who was in the room be-
fore he went in. Says, he is ahuni 37 years
old ; that he never was acquainteil i^iih lurd
Allhaiu before he was einplnyed «a a tutor lo
his son i and ihst it was Mr. Tli'iman Oweoa
(who was deponent's father's liindliird) that re-
comtoeaded ileponent as a careful, iuher young
man, and fit lu be tulor to ibe chllil. Being
aiiked. if he went to idum or iu i-hiirvb ; ssys,
that he goes to mass ; hut that he ilid not knoiv
much of religion when he tutored Mr. Annea-
ley, lor during Ibe six monlhs thai he sUid in
Ihe house he neither went lo church or mass (
but Mtys, he has a belter notion of religion now
(thank God.)— Hays, that lord Altham never
examined deponent whether he was a Roman
or I'coteitani. and believes my lurd did not
kuow of what religion he xtas, Beiug asked.
If bd is in holy unlers now^ the counsel for
the lessor of the plaintiff objected to that ques-
tion, and the wilneta refuied to answer il.
lleiag aikrd, if he knows Thompson Gregory ;
said, bit (Iocs-, and ihal helited at CaTrickduff
when dvpouent was (here. Say!), he waa tichkn
tba cbild bad oii« 'V^wk^ \aMit \b NsukSmva^B
1 179] 17 GEORGE IL Trial in Ejectment bettoeen J. Annesliy^ esf. [1180
time. Says, that af\er depoaeiit saw Mr.
n*Kercher at Hacket's Town lie had some
conversation with Mr. Francis Thornell ahout
Mr. Annesley. Says, be did not see Mr.
M*Kercher since he saw him at Hacket's
Town until the Saturday before his examina-
tion, and did hot see Mark Owens since till the
Saturday before his examination. He was
asked, if Mr« Annesley had his own hair or a
w'lZ when be was tutor to him ; says, he bad
hair of his own of a flaxen colour, and not a
Vii^. He was asked, whether lie had his own
bair or a wig when he saw him at Hacket's
Town ; says, that one's bair is now tossed up
in such a manuer that its hard to distinguish
between a person's own hair and a wig, there-
fore deponent could not take upon him to be
certain whether it was his own hair or a wig he
bad at Hacket's Town. Savs, that deponent
went to school himself for aoout two or three
years after he was tutor to Mr. Annesley. Be-
ing asked, what be learned at school ; says,
one Mr. Hughes taught him the Odes of Ho-
race.
Charles Bjfrn aworn.
Says, be knew the late lord Altham at Car-
rickduff, in the year 1721 or 1723, and depo-
nent lived within three or four miles of the said
place. Says, my lord had a chikl whom he
called his son, and who by others waa called
Master Annesley ; and that he wav reputed
lord Altbam's lawful son ; and deponent was
very frequently in company with lord Altham,
and says, his lordship was very kind and fond
of the child, and behaved to him as his own
child. Says, he knew lord Altham better than
a year, and that be visited deponent and other
neighbours with the child. Says, he had a
white feather in his hat. Being asked, if he
believed the child to be my lord's lawful son ;
deponent protests, that if the best duke in Eng-
land had brought a bastard to visit in bis fa-
lYiily he would have resented it, and cut his
nose; and that be always looked upon the
child as lord Altham's lawful son. Says, that
being, invited to the house of one Mr. Red-
monds, he met my lord Altham there; and
that they toasted, * That the child might live to
be earl of Anglesea.' Says, that my lord
thanked the company, and took the health as
a compliment. Believes the child was then
seven years old, or thereabouts, and that my
lord used to take him on his knee. Says, that
my lord used to take the child with him to
hurlings ;* and bought a little horse for him
to ride upon ; and that the child was dressed
▼ery gay. Being asked, if he knew him now ;
■ays, he cannot swear to him at this distance
of time. Being asked, if he knew to what place
my bird went from CarrickdufT; says, he does
not know. Says, that something struck depo-
nent as to Mr. Annesley's features when depo-
nent was lately introduced to him : but being
* Hurlings is a diversion uatd in Irdiad
ANMib iUM tSegaoM of crigkft.
\
asked, whether, if he bad met him without
being introduced to him, be should have kwwa
him ; says, be should no more have knowi
bim than the king of Morocco.
Charles Cavenagh sworn.
Says, be knew lord Altham about SO or 91
years ago at Carrickduff', and knew him tbos
about two years; says, he saw a child there
about 6 or 7 years old, whom lord Altham nid
to be his son, and treated as such. That his
lonlship seemed very fond of him ; and die
child was reputed to be his soni and treated u
such by the servants, that is, with good man-
ners andrespect ; and (to the best of depooeot'i
memory) they called him master James.
Nicholas Duff twon.
Says, be knew lord Altham when he fodged
in Cross-lane, Dublin, about 20 or 21 yean
ago; and he had a young gentleman with bim
who was called James Annesley, and my kml
treated him as became a lord's son ; and de-
ponent is sure be was his own son by my lord's
own declarations. That deponent kept a pub-
lic house in Loftus's lane near Cross-lane, sad
heard lord Altham say. Iff live to be earl ef
Anglesea, Jemmy will be lord Altham. For
that lord Altham was very free and familiar
with deponent, and used to drink with biiu.
Says, Jemmy Annesley went to school io
Proper lane, to one Daniel Carty, and two sf
deponent's sons went likewise to the same
school ; and that deponent saw a servant, who
(deponent was told) was my lord's servant, at-
tend the child in going to school, and comia;
from it ; and that the servant wore my lord's
livery. Says, the child was sometimes called
master James, and sometimes master AnnesleVi
and sometimes the young lord Altham ; andba
was then about 8 years old, as near as depo-
nent can guess. Says, my lord lived about a
year in Cross- lane. Being asked, if he heard
of one miss Gregory ; says, that one miss
Gregory was in my lord's family ; and that
she, along with one Betty I^ester, (a butcher's
daughterj used to vibit deponents bouse, aod
call for liquors : and deponent says, that no-
body gainsaid the child to be my lord's lawful
san. Says, my lord at another time told de-
ponent, xou may live to see this child earl of
Anglesea. Says, Carty kept a liatin school,
and that children of responsible people wvrt
put there.
[Cross-examined.]
Being asked if be ever carried a chair;
says. What of that? I am a gentleman now.
Being asked if he is porter to Jur. M^Kcrcber ;
says, No, I don't go of errands. Being asked
if he opens Mr. M^Kcrcher's door to people;
says, ** Sometimes 1 open it. But I have do
waiifes, I tend to oblige Mr. Annesley and Sir.
M*Kercher. I came from London to obli^
Mr. M^Kercher, I was acquainted with bin
there. I heard in London that Mr. Annesley
waa rctnmcd from tnnsportatinni and tbai bt
1181]
atid Riehard Earl qfAngktea.
A. D. 174S.
[list
lod^'cd at one Ilendenon's ; and it was Mr.
M-Kercher told me where Mr. Annesley
lodged." He was asked if he ever sweptbe-
fore Mr. M*Rercher*8 door ; he replied in an
angry and loud tone, No. Being asked how
Ioiig*he had the coat now on his hack ; says,
£rer since I bought it last spring. And depo-
nent added, M'^hv don't you ask me where I
bought this wig r Says, he was formerly a
fiirmer before he came to Dublin.
Catharine O^Neilc sworn.
Says, she knew lord Altham when he lired
•t Carrickduff, and that deponent was em-
ployed there about 22 or 33 years ago, to take
care of my lord's son, who was called James
Annesley, and deponent also attended the child
to Cnitis'-tanc, Dublin ; and says, she attended
him in all about a year, and that he was re-
puted and treated as my lord's son. Being
asked if she knew miss Gregory ; says, that
Mrs. Eleanor Gregory li^ed at Carrickduff
(wbeo deponent came tuere) as my lord's rela-
tion ; and when my lord came to Dublin, de-
ponent heard she was my lord's bed com-
Emion. Says, she remembers the child's
rtb -night kept at Carrickduff, and bonfires
and rejoicings made on that occasion; and
sereral of the neighbours invited. Bays, that
after she left the young gentleman in Cross -
lane, he came one day to see deponent in
Jaroea's -street, in a very poor mean condition ;
and begged of deponent to speak to bis
father in his behalf; that acccrdinHy depo-
nent did apply to my lord, who said, the boy
had got some vicious tricks, which when he
had broke himself of, and behaved better, he
would take proper care of him. Upon which
deponent answered : Ah ! my lord, these
are only base contrivances of miss Gregory ;
that my lord said his son was taken care
of« and that he paiil for his board; that
It was true enough Miss Gregory did not like
the child, and that if lie was to take him into
the boose, she would not let him be at peace,
and therefore he was obliged to keep him
abroad. Says, that the child was sent tt> ledge
and board at Mrs. Cooper's in Ship- street, and
that it was from Mrs. Cooper's he came to
deponent to James's-street, and that he came
a!one without any servant or person attending
bun. Mays, that Cross-lane was the first
{dace where my lord lodged in Dublin after he
eft Canickdufr, and that he afterwards moved
10 Proper-lane before he went to Incliicore,*
where he lived ivhen deponent apoke in him on
behalf of his son ; says, that when my lord
first came to Dublin, lady Altham lodged in
8table-Iane, and she sent for deponent to come
lo ber; that deponent went, and my lady
■sked her how iny lord and Miss Gregory be-
bared to the child ; to which depone* it an-
swered, that while he was under hrr care,
tbey behaved very well to him ; bnt that (by
repute) they did not behave so well to him since.
f Incbicone lier within a mile of Dublin.
.
Says, my lady called master Annesley ber
child,' and 8ai«l, she was very desirous to see
him, but that she waa afraid her doing so,
mi^ht be a means lo turn the servants out of
their bread, and be a detriment to the child.
SfLVBf that deponent asked the child why ba
did not go to see his mamma, my lady Al-
tham ; to which the child answered, that lia
was forbid to see her, and that he durst not go,
for fear his father should come to hear of^it»
and refuse ever to see him again. Says, thia
was about 18 or 19 years ago, to the best of
deponent's memory. Says, that tlie first time
she saw Mr. Annesley (since he came from
abroad) was about a year ago, at his lodgings
ia Linnen-hall-street, and that she knew bim
again the moment she saw him ; and deponent
(looking about the Court) pointed at Mr. An«
nesley, and said, He is the same person whooi
1 attended when he was a child.
[Cross-examined.]
Being asked what condition Mr. Annesley
was in when he applied to deponent in James's
street ; savs, he \vi>s in a low condition. She
was asked as to the colour of lady Altham 'a
hair ; sa^^s, she cannot tell if it was black, bnt
if not, it was a dark brown. Says, lady Al-
tham lodged in Stable-laue, at one Cavanagh'Sy
but does out know his Christian name. Being
asked if the child ever went to school while
he was at Carrickduff; says, he went to school
to one Mr. James Dempsey at lord Aliham's
house, and went also to school to bim wheu ha
taught abroad.
Mr. John Byrne^ brewer, sworn to the Voire
Dire, and then in chief.
Says, he knew lord Altham about 19 years
ago, when he lived in Proper- lane, and that a
boy called master James lived then in lord Al-
tham's house, and deponent saw him at the
door and windows of my lord's house, and the
child used to play in de|ionent*s yard, and wat
generally reputed by all the neighbours, and
by deponent, to be lord Altham's lawful son.
Says, that he has very often seen him playing,
snd took particular notice of htm, and from
the knowledge of his physio^nomjr, is positive
that the lessor of tne plaintiff is the same
person now grown up to manhood whom be
saw a boy. Says, that when Mr. Annesley
lived in Proper-lane, be was about eigft
yean old.
[Cross-examined.]
Deponent was asked, how long lord Ahbaa
live<l in Proper Laac ; says, be cannot tell ;
but that when my lord lef\ bis house there, be
went to Inchicore, and left the boy behind bin ;
says, he never saw the boy since the year
1724 till lately. He was asked, where the
child went to school ; says, he heard be went
to school in Proper- lane to one Carty. .Say a.
he was then told, that miss Gregory disagreed
with the boy, and that this wai lVM,\«iiiw^ tit
huquiltin;i;bMtt^>M^%>Dk!vawa« %v|%^'^n^Vfi
1 187] 17 GEOKGE IT. Trial in Ejectment between J. Annedey^ «}. [IBS
fieponent was asked, if be knew doctor Brown ;
Bays he did, and that he is dead, but deponent
Aever spoke to him. Deponent then pointed to
one Mr. Ea&^er in conrl, and said, he lived with
bis father for seven years. He was asked
what he cave a harreJ for tlie oats he bought
for my lord ; says, he gave 48. 6c/. a barreli
and that my lord paid the money when the
oats were delivered. Being again asked, with
whom he made the agreement about the
nursing of the child ; says, with my lord and
lady, and that it was my lady \v4io gave him
lived in Montratb -street, Dublin ; nyi, ^
she came to an agreement with them to Up
and diet my lady and her woman, andiiiM.
servant, for 6o7. or 70/. a year: tbal iIkj
having objected to there being no locbii ik
rooms, deponent said, she would getlodi fi
on immediately, and the man gave die In
nent a pistole earnest, and deponent got n
locks put on next morning ; says, that ioi far
days the same man came again to depMo^
and told her, that the doctors bad idiiicd ^
lady not to lodge at deponent's house, boai
the halfcrown; says captain "^Tench is dead ; it was too near the water, and the air m^ii
.1 111^*1* III L ' t.X I ^a.A*A A*.^ «l ^M tX „^_ I
says, the child cried in my lady's arms when
t,be phicken ran away, and my lord said,
jemm^v, Jemmy, don't cry. Being asked, if
the child called for the chicken ; says, he did
not speak, but stretched out his hand, aud made
signs, as if he wanted it again.
The Right Honourable Hufi,h Afnntgomery
earl of Mount Alexatider ;
Says, be knew lord Ahham, and that a creat
many years ago he was in company with bis
lordship, captain Groves, and others, ai a
public house on the Glib,* called Serjeant Kile's,
where they eat oysters ; says, he heard lord
Altharo say. By G — d, Gruvcs, my wife has
got a son, which will make my brotlier's nose
swell.
The counsel for the defendant begged leave
lo ahk lord Mount Alexander a few questions.
[Cross-examiuc d.]
Being asked how long is it since lord Ailham
spoke tliose words about his i^ife's having a
son ; says, upon his uurd aud honour lie
cannot tell how long ago it is, nor how long it
was l>efore lord Altliain died. Says, he never
heard of my lord's having a bastard. Being
asked if he was intimately acquainted \s iih lord
Altliam ; says, he was acquainted with him by
their sometimes takini; a glu&s to;rethi-r; that
he did not visit lord Aliham at his house ; but
that they frequently met at the suid luuise to
eat oysters; that captain Groves i^iis at that
time proviJore of the hospital, i^tini^ askvfl
ithat time of the year it was that the said con-
versation happened; sa\s, most likely in the
winter, because oysters are thon in seasrui ;
savs, there was no other conservation on the
suhjoct at that time, nor did he ever li^'ar n\y
lord talk on that subject either before or since.
Margaret llvd^trs sworn.
Says, she once saw lady Altham at Mr.
King" the a|)Othecary's in Charles-KtrL^t, in
ll'Z'i or 172U. Th:it it was upon the foliovvin;;
occasion : the dopunciit havii:g a house on
Ormond-key, and lodgings to let, my lady\<)
woman and a man came to deponent, to know
whether deponent could board a lady, with her
woman and man-servant; 9ays, she does nut
know the woman's name, but that the man
tfMi
* Tlie Glib is the plac« where butchers'
ihamblcs v« to Dublio,
agree witli her constitution ; that tbereofa
deponent returned the pistole she gii li
earnest ; and about a fortnight aftnr vberi
an acquaintance, (one Mrs. Lloyd), in wfai
&he told the story ; that Mrs. Uovil Mid^
nent was a fool for giving back' tlie emot)
and advised deponent to wait on niv ladjk»
self, and acquaint her bow she bad beenioiil
and to ask if it was with her ladyship'ilD»
ledire.
Says, that accordingly deponent west ti ■
lady, in order to expostulate with her; tMv
went to Mr. King's in Charles -street; tM
went up stairs into my lady's room; tbitis
ladyship was sittiiig, lieing in a weakcosdilii
in fier limbs ; that deponent begged beryjf-
ship's pardon for taking the liUfrty tomiti
her, and mentioned the occasion of it; vkt
the same time told her ladyship, tbatiLei
her countrywoman: says, that her liiNf
asked her how lung she had been intlicli^
doni, aud the occasion of deponcnr* coiii||
over; to which deponent ansx^rrcd, tlitth
canio over to get some money that was ^^'*^
to her; whereupun my lady .said Xi\ iletftjei^
I wish 1 had never seen Ireland, nadln^
vou better luck m it than I have had; ferif
ioid Ahham h:<s used me cruelly, aod m
aspcrse«1 my character. Says, tfiat Id tk
course ofthat conversalion, deponent a*ikedkl
ladyship if she hftd any children ; to wbicIiB|
lady answered, ^ es, I have a son.
[Cross-examined.]
Says, she had this discourse ia the to
Rung asked by Mr. Daly,ODeolih
dc(ii!dani's counsel, when it was she cioe*
Ireland ; said, About the year 1720, or li!li
a. id now 1 live near Howth, where Iha^J^
hi^r.oor to dine wiih you (meaning Mr. D4
at lord liowth's. iJciiig asked, «r briber ^
ladv's woman was present when ber laJj^
said she had a child ; says, nobody wuf*
st^iit, hut that her woman was in andoutoTiSi
loom ; says, that my lady gave asighi"^
she saiil sde hud a son.
Being asked it' Mr. King is living; ny^*
believes he is, because she has never
his bning dead.
lieing asked whatsiaeed woman nyMf ^
and oi' what complexion ; says, that iht ' .
of a swarthy complexion, and dark hisaifcj
but, as slie was sittiog, caii'k ttU nkitWP
she was of.
17 Co.
and Richard Earl ofAngleiea.
[1190
yi, he knew lor J All ham when he lired in
pr-laoe, nbout 19 or SO yrari %go, anil re-
lien li« l«li Proper- line iii 1734. S>y«,
H had a rhild with him lliera, who wu
ed lo be his EOo ; Ihat il«|wnent waa very
icquaiutnl with the cliiid, for thry wer«
■Ji Uie Moe street, and ucedtojilay toge-
:*«ryilay; aays, hebeJicTeimy lord IJTeil
a year io lliat street ; and ia pnaiiive my
eft il ' ■ ■ ■ ■
because d^poneiif. latbw l^'^i^J'^i'^l" 'i''„',h"'il!v^^'h..''',lt^'^'?
d Trom Uie country tin
e of hia busineaa (which
!t) into depotient'tkandt. Says, ilepoiient
M achtwl to one Clark'i in the Cbivstera ;
iy lord's aun lo one Carly's ia j^roiier-
and deiHioent tided In vail U|M>n him
il lime* al tlieachool ; and sayi, niy lurJ
D Pro|)er-taDe al the time his son went to
I there.
t, lliat ny lord seeing liii Mn )inil depo-
nie day at play together near hia duor,
o bii lOD, jtiininy, came, and briog io
r Byrne aloni; with yon ; and thereupoD
r Jemmy and depooeiit nunl in, and lay
muitht them into the jiarlaur; and when
ird liail been with them about half a mi-
ir a minute, be waa called out by toine-
and driiouent aaw nonereofhialurdahiti
a, ibatwiien lord Altham left Proper-
ia aou remained in tlie house allrr hini ;
t Ciime til deponent to ukf. iiU leave of
nil told deponent iliat one Sir. Cafeoagli
X. C. B. laball confine the witness (o fjcti.
Says, thai when the boy reTiued to go to hi«
filler's, depanent ioTited him lo stay witli him,
and brouarhl him into the houte unkDOwa to
hia (the denaneiU's] Tather, and he ftaid nitit
deponent airaut five or six weeks ; thai a
.■ L-i — :-, ihe game bed with denoi
the hay- loft; that then
sooofbia patting Mr. Annealey in the hay-
loft, wai (eat deponent's futlier should diicorer
that he entertained any body in the housf
witbout his tmve or kDoftled^re, and be anj^y
with deponent for so doing, tteys, that m de-
Conent's father had no family, when he carat
nme early he utcd tn go to bed before depo-
neni, and then depouent carried the boy to bic
own bei), an there was no danger then of Ida fa-
ther's knowing that Mr. Annealey was jntlia
boose ; but al other timea deponent bad not
the same opportuniiiea, and cuuld not brin^
him to bed udkdowo to his father, and ilierefora
wss obliged to conceal biin in the hay-h>fl^
where il^ncnt gars bim meat and driuk nn-
known to his falher.
Says, that the intimacy deponent had with
the boy arose from his liarjng been bis pisj-
fellow ; and that it was out of fnendsbiu to
bim tfaedeponent supported bim. Being asLed,
if lie obaerreil lord Altliam to .ake any care of
thetbild, says, he did not observe m^ Ir * "
log-n
was'-oinglo iiulhimoutto ' 'skeany caret ..,,..,,, . , •
belnS a^ked, how <dd the "«■"■ '^•^ beheres his lonlshiu did not know
Uepouent
as then, says about tea years old, and
ihree years younger than dcpo-
vof him white he was wiih depo-
es his lonlahiu di '
Being asked b
, where he wss.
came to leave him, andVhat bccaineof Iheboy
Says, that M\: Anni»ley."a g'^ ma^y o"*" ^* \*i^'^ deponent ; says, that Ihe boy
I slier his taking lea*^ of .loponenl, ■ tT'^" "red of staying with deponeul un.ler such
roper-lane, ond made Rrrat |
lints of Ihe Irvslmeul hi
:reet, where he lisd been |iut to diet and
andssiil, thaihe badbeeii to Sir. Caie-
'ho hod refused lo receive him in his
Kise, and tliat if de|ionent wuuld not re-
iro into his care he did not know what
nor where lo go; whereupon deponent
him to go lu bis father lord Allliam'a
.1 Inchicore; lo which the boy
IB (in
) was th'ere with hia fallier, lor thai
lid nerer agree with him, and thai ahe
m ill before, and that il would be tu no
■- for bim tu atlempi going there.
Gen. RIy lord, 1 desite to base the
' the Court upon this part of the et i-
the witness was going xa ray what the
toEd him : so long as this was tor con-
1 nisde no objection to it; but he is
f a side-wind to reflect utioii the credit
•an, who may be produced in esidence
Icfcojant; this Esskca it material to ob-
lif part of Ihe STidence.
Br II m/ be tsalcrial to know nhat
grew tired of Mtaying with ileponetil u
tniint, and sa'iil he would go tu his rather to
;hiGore ; but dejionent diies not know what
became of liim bul by bvantoy.
Says, that the school wlierc the boy went,
waa next iloor to where deponent liveil, and
that when he first came to Proper-lane he
wore a scarlet cuat, and all ibe geulr**! hoys of
the street were his play -fellows. Deponent
being derirrd lo nanie some of thine boys,
ineotioncil Watty Ames, sun to captain Ame* ;
two sons of one Kohcrt Hyrn, a brewer ; a aon
return from the Weal Indies. That when Mr.
Annesley came Rrat to Ibis kingdom. Mr.
Rirlianl Malliews met de|)unenl at the Globe
CI •ffce. house, inrited hira in dinner the next
dav, andreqiiealed deponent tn meet him atth«
coflee-hnuse afier chaoce lime. That de-
Ennent accordingly wentthe next day and met
Ir. Uaihews at the time and place appointeil,
Tliat Mr. Mathews sent for a cnach, and he
and deponent's father, and deponent waii into
it: but inxtead of thnr giiingtu Mr. Msihi-ws'(
house, on Usher's Quay, as dcponcot expect-
ed, Mr. Huibewi onl^«d iha cguh ta drin
1191 J 17 GEORGE 11. Trial in
to Jer?is^tr€et, to Moore's the apothecary's,
which this clepooent at first thougfht somewhat
strange, and •when the coach had stopped at
Mr. Aloore'e, Mr. Mathews, his father, and
deponent went into the house, and they were
shewn into a dining^-rooDD up one pair of stairs.
That Mr. M'Kercher came into the room and
saluted them; but that he was astraog;erto
deponent, deponent ha?in(^ never seen him be-
fore. That soon after three other gentlemen
coming into the PK)ro, Mr. Mathews asked de-
ponent if he knew any of their faces ; where-
upon de|Minent looking very earnestly and
separately at them all, knew Mr. Annesley, and
said, That is Mr. Annesley, whom I knew at
lord Altham's in Proper-lane, and was formerly
any play -fellow. Says, his image was as fresh
in cfeponent's memory as when he last saw
him, which was, wh«n he was about ten years
old. Says, this was, as deponent believes,
about two or three days after Mr. Annesley's
first landing in this kingdom. Says, he knew
of Mr. Annesley 's being returned to Irelnnd,
but thai this was the first time he saw hiui
after his return. That deponent had no con-
'versation with his father about him, and did not
know before then, that he lodged in Jervis-
street ; but says, that after deponent was in Uie
€x>ach, and the coach was directed to drive to
Jervis- street, he had some notion that they
were a going to see Mr. Annesley : for depo-
nent had been told by the boy at the coflee-
liouse the day before, that Mr. Mathews and
Mr. Annesley were at the sign of the Bear the
sight before, (which was two days before the
day of deponent's seeing him) and that they
had sent for deponent, but deponent happened
not to be at the coffee-house when the message
was left there. Says he never saw the other
gentlemen (who came into the room ivith Mr.
Annesley) before that time. Says, he knew
Mr. Annesley 's face as perfectly as any face in
the world. Being desired to look about him in
Court to see if he knew him, then deponent
pointed to 31 r. Jaiues Annesley (the lessor of
the plaintiflr) and said, by virtue of my oath he
is the person I knew at lord Altham's in Jum-
per-lane, that was taken in by me at my fa-
ther's house, as aforesaid, and that I spoke to
at Mr. Moore's, in Jervis -street, in company
with Mr. Mathews.
[Cross-examined.]
Says, that he is S ^ years old next January.
Being askeil who lived with lord Altham in
Proper lane, says, miss Gregory and her mo-
ther, and some servants, and the boy who was
reputed lord Altham's son. Says, he was re-
puted his lawful son by all the neighbours, and
went to school to one Carty in Proper- lane.
That Carty taught Latin and to read English ;
but can't tell of \»hat religion he was. l)e\to-
sent being asked what religion he himself pro-
fessed ; says, he is a Roman Catholic. Says,
Biany of the neighbour^' children went to school
to Mr, Claik io the ChiVsters : and admitx, that
h wu s more creditable ichool thau Carty's.
Sjectmeni bHvoeen «/• Annedey^ esq. [1192
Being asked, how often be was in my krd's
house ; says, never but oooe, and that was tbe
time my lord desired the child to call depooeat
in : that they were liotb playing at marbles.
Soys, he believes the child remained about tws
days in the house after my lord left it; botii
not snre as to the namber of days. Says, tWre
was one boy and maid-servant left in tnebosie
afWr my lord left it. Being asked, bow \iuf
after taking bis leave of deponent, Mr. Adbcs-
ley came hack to him rn Propei^laoe; ujt,
about five or six mouths; and believes it sv
the latter end of the year 1724. Tbatdepo-
uent was then 13 or 14 years old. Says, k
heard that lady Altham was his SDOlber, sad
never heard he was a bastard till his last ooaiif
over to Ireland.
.
Michael Waldron, gent, one of the Attomid
of the Court of Exchequer.
Says, he thinks he has seen tbe late kird il«
tham. Says, that a yoimg gentleman (vfas
went under the title of lord Altham's son) wu
at school with one Bamahy Dunn, in as alky
next door to ^Varborough church, in Waik*
rough-street, when deponent went to scheol
there. Is not certain of the time, but believa
the young gentleman might be then 10 or II,
or at most 12 years old. 8a>s, that depoacst
went to Dunn's for about two years, and thil
the young gentleman continued ihereabsut7
months at school. Believes he lodged in Ship*
street, but does not know who visited bin.
Says, he was called by the srholars young lord
Altham, and particularly by Mr. I'uvenagli, tlie
dancing- master's son. That he remnnfa^rs the
school -master one day niatle use of tk«se
words : That if he was a dtikf'K son, let alsse
a lord*s son, he would correct him. Says, that
deponent used to go witii his sister lo Mr.
Cavenagh's dancing-school, and there itaw Mr.
Annesley ; bnt does not reroeinlter to have seen
him any where else after he left Dunn's scbovl.
[Cross-examined.]
Being asked, if he had seen Mr. Aoneslfy
since his return to this kinjrdum, and how be
came to be introduced to him ; says, he bai
been in company and dined witli him. Thit
be voluntarily went to his lodgings in Cullef^e
Green, and introduced hiniself, in onler to lio
him all the justice in his power. Says, be
really believes he is the person he went to
school with, as aforesaid ; but will not swear
|iositiv«ly to his face or features at this dbtaoct
of time.
[Hereupon the Lord Chief Baron said, ibit
the last time he was in London, as he was
walking in St. James's Park, he accidentally mrt
with a gentleman whose face or features be
could not remember, until he was remiods4
thereof, though he formerly had gone to school
with him.]
Bamaby Dunn sworn.
Says, be knew lord Altham. Tint dsMonl
kept a school in Blae-bosr alley ui Waibs*
1195] and Fkliard Earl flJAnglesea. A. D. 1743. [119
BeingaikeJ wWre MrAiinenlsj' lod?i?d when
he went In scliool la druoneut ; s»vi. lie IoiIitviI
in Sbiji-nrerl; Tor ibai U|iod ui
rooKh-rirect, bih) at tbat lime one Dennis
C«*euaj;li (i tlaucing-inntler) intriMluccil mas-
ter J*uies AtiJieiley to (te|ionenl da loril AI-
tbftin'i son, anil put liitn to ileponent's school.
Sajm.tliat Cuvtiiogh iwed these wonls tn de-
ponent 1 As yu rtgani me, ukn cure of this
yooag ^eolleinan } he is luril Alilistn's snn. Is
not iKiBitire how long he vas at driMnenl's
■choal, but believes he vas there sboiit 8 <ir y
•Wdths ; but does not remember any (reatle-
nan's coming to see bio) there. fiiiiS, that
bnt Ahhnm some time aflern ants snld la ilejiO'
nenl ; Mr. Dimn, jou were recamineD Jed lo me
aa a aulMrr careful man to insirucl yoiiib ; I
bare iherrliire sent lay son 10 you ; Idlu: care
«f bin), BniJ _\(iu shall be rvwarJed.
Bayi, ihst' he receiied a letter in the country
fkom Mr. ftlicbael Waldron, expres^in^ ihat he
would be gtad lu see deponent at liis fsthrr's
Id Dubho, about some particular business, but
Ihc letter did nol menlion what the business
Wu; thit deponent thereupon catne to Dublin,
«iid went to Mr. IValdron's tkiber, pursuant lo
dM directions of the lelter, hut Mr. tValdroo
•at MiiiK there, deiionent was itirecti'd la go lo
• ■r. Wablnin's own lo>lgin|rs, which deponent
Meordingly did, and there mcl Sir. Waldron in
tin inominic; ihu atitr haviui; laluled each
mhrr, Mr. n'atriron expresieil Ibaihe wa« (;'=>•'
« deimnenl, and aitked de|>oDeot, if he re-
lured lord Allham's son, who went lo
d to deponent i deponent said he did re-
ber him, and told Sir. Waldron. Ihit he
weni to deponent's scbwil at llie sanie lime ;
Vel, rephed Sir. Watiinm, I did eii ataug wiib
fcin in jour sdiDul, That then Mr. Waldmii
.ireased himsfU' and brought deponent along
with him to College Green, where they went
Imo an bouse, and were shewed a room, and
JUktA to bieakrasi. ti^yt, Ihat the moment
4tpi>iirnl saw Mr. Annesley come into the
IBOOi, he knew him, and ailtanced to bim, and
Uisod him. Sa_vB, he had observed a bitle cast
in bis eyen <*henbe was a hoy, and the remem-
brance nf lli.1t raalchim know him, and depo-
imt remembered likewise bb features, and
lllMW him as well as any man litin^ ; and says,
' bj virtue of bis oath, if'be was a dying man,
b««ould safely swear he knew bim to be ihe
mue person.
( C ttMt -ezami ned . ]
fSajs, that depoaenl inslructed lord Kings-
lud and hi* hrolber, at lady Kingslaud's house
ht Queen-sireet, lor about S or 0 years; that
Mr. Annesley came lo deponenl's Bchiiol some-
time in July ITKl, and d«(ionenl is sure of the
jwr hrcBiJie depuneul got a iiole from Udy
Kingilaad's rrctivcr dnied SIsI of Scpiemlifr,
3134, which deponent has kept ever since (ite-
EDueut (licw Ibc siime out of his poekei to shew
) and Mr. .\iineklev was at school wiih depo-
Mcot some iiiik before the date of ilial wAe.
Says, Ibal [tir. Civensgh atWrwardi told de|)n-
_ . . ..... .. ^ |^|,j |jnj[ g^^ (nonev (on depo-
C for Ihst purnosv) but deponent
"A by his lordahip.
sbseiiUnc;
himself from the ichool, deponent enqurred,
and lieing infurrord that he lodged in Sliip-
Bireet, went lo look for bim, and tound him at
hit luilgings ihere i snd deponent told him
then, tbjt if be was even rhe lord Aiiglcsen,
and under deponent's care, he would punish
liim furabsenllnif from his icbool.
Being askeil what he toogbt Mr. Annesky;
■ays, he oannol al ibis distance of lime tell,
wbeiher he Istight hire Latin, nor what bonk
he Tead,bal believes he luught him lo read and
write. Says, be found llial the child had been
nt sDOlher school beiore tie came in bim ; can-
not lell how old he woe then, but says lie ap-
lieared to he 9, 10 or 1 1 years old. Being ask-
e<l if llie clilhl was attended wllh any ■ervaol ;
ESys, that sometimes a seivanl clad ti iih a hlua
cloth came along with him, but not ilvrays.
T/iomai Byrne being ordered by (he Court
to be called again.
Says, thai he believes it was in the ))^innin:;
nf summer, 1734, thai my lord Altbani left
I'roper-lane. Being asked, if he could recol-
leol how ihe boy employed himself whde ho
Blayed with depuuent in Proper-tanc, or if be
■ lien wcnl lo school ; sayi, that he did not go
lo school then, that he was aboul the door, and
sometimes lay cuocealed in Ihe house, and be-
lieves he lodged with deooneni aboul Christ-
inas lime. Says, that when he 6rit came to
lake his leave of denonent, he told deponent he
was going to board in Ship-slreel, and depo-
reiil reiiieinbers he meniioned the name of
Catcnagh.
Patrick Plunktl, brewer, sworn.
Says, that deponent knew lord Altham In
the year I7S3,lothe hi'sl of deponent's remem-
brance, and that his lunlsbip lived in Proper-
lane, next dour lo depnneul'a fnther, and de-
tnocnt used often tn go a hunting niih him,
is lonlibip then keeping a park of hounds,
and by that means deponent became intimately
ac<|uainied wllh him ; and says, Ihat he oflen
drank with his lurdshio. Thai he saw a child
nt ray lord's house, who was called my lord's
■on, and whose name was James Annesley,
and depooeol saw my lord frequHnlly speak to
him. Says, that Miss tircgorv ollen used to
cmmplain lo my lard of the child', and deponeut
iwice or thrice interceded and got a pardon for
bim. That llie faults the boy was cliarged
with, was ellher telling lies, or being missing
from schoul — heard Miss Gregory Call him
Jemmy, and Ibe servants call him my lord's
•on ; and says, he was Ireuled by evi>ry body
as lord Altliam's cbiM. Ueponcni having wul
he interceded for tite child wliei) Hiss Urcicury
complained of him, deponent was desired to tell
in what words tie spoke lo my lord; sajs, ihat
tn ihe best of his remembrance il was m wnnlf
lu this eReol ; I hope, my lord, you
uitster James, and he will nceer do il'
I pirdon 1
1 195] 17 GEORGE 11. Tiial in EJechKcnt bctKccn J. Anneslfy, esq. [1 IM
Sajrs, that deponent (inderstcxxl Miss Gregory
hatc'd the hoy ; that she was mistress oj' the
house, and that whatever she comiuanded was
done. Says, that one ot'tlie times my lord and
Miss Grc'Tory were in such a pasaioo that they
were goin^ to beat the child. Hays, it was the
fjreneral reputation of the country that be was
lord Altham's legitimate son, and deponent
never heard any auspiciou to the contrary until
admiral Vernon hau sent Mr. Annesley from
the fleet to London. Being asked how he
knew that admiial Vemou bad sent him to
England; says, that lady Anglesea sent for
deponent about May last was twelvemoath, and
asked deponent if he knew lord Althara, or a
bastard son of bis ; to which de[K>nent answer-
ed, that he knew a pretty little boy, that was
in the bduse with lord Altham, who was re-
puted to be his sou, but nut a bastard : lady
Anglesea replied, He is a bastard son of my
unfortunate ford, and added, that it was admiral
Vernon sent him home to Englanil. Depo-
nent was asked, when he first saw Mr. Annes-
nesley after his first coming to this kingdom ;
says,* he never baw him since April 17 23 or
1724, till last October was twelvemontb, when
deponent saw him in a house near Mary Church.
That shortly after Air. Annesley came firvt to
the kingdom, deponent met one Cook a linen-
draper, who asked deponent how long he lived
in Proper-lane ; to which deponent made
answer, that he lived there about 96 years;
Mr. Cook thereupon asked deponent if he knew
lord Altham when he lived there ; deponent
said, he did : Then said Cook, it is reported
thai a son of his is come over here to claim the
Anglesea estate. I believe, said deponent, it
is James Annesley ; yes, that is his natue, re-
plied Cook, or to that purpose : 1 know him
perfectly well, said deponent, he went to
school to one Carty's in Proper- lane, and
though it mi;; hi be soinewhat difficult to know
him at this distance of time, yet upon recollec-
tion, 1 have a perfect idea of his face and fea-
tures, and will hold a dozen of wine 1 should
know him from a hundred, unless he is greatly
altered ; says, he did not know a word of Mr.
Annes!i'y's being in the kingdom, till Mr.
Cook had told him of it ; says, Mr. Cook
mentioned tint he was going to his lodgings to
sec him, and deponent having a desire to see
iiim, ofieied to <>o alou;r wilh Mr. Cof>k ; says,
they wont to Mi\ Anncsicy's lodgings, and
that candles were just liohted ; says, they
Were received at the parlour door, and intro-
duced into the room; Ihut tli'Te were several
gentlemen there, but nobody spoke to depo-
nent ; that disponent looking round, immedi-
ately knew Mr. Annesley, and went up to him,
saluted him, took him by the hand^ and said,
Mr. Annesley, yon are welcome to the king-
«]om, I am ^lad to see yon. Says, that depo-
nent took notice of his looks ; and that the me-
lancholy manner in which deponent saw him
]yvhea he intercedal for him with lord Altham
in Proper-lane, as aforesaid, had made so strong
»n imprauioD on depooeDt, that ht opaM not
but remember him ; and says, that hi« rjei
and face are very familiar to bim^and ibat de-
ponent is positively sure lie knows bim. Being
desired in Court to point ont the persoo he
meant, he accordingly pointed to Mr. Annesley,
and said, he was the same person who went to
school to Mr. Carty*8 when he taoght io de-
ponent's father's yard, and who lived with lord
Altham at his house in Proper- lane, aad was
reputed bis son.
[Cross-examined.]
Defendant's counsel said to d^onent, Tos
say, you took notice of his eyes from the me-
lancholy manner yon saw hiui in, and that tliis
made you remember htm ; was he In the same
melancholy manner when joa first saw biia at
iiis lodgings, since his coming over ? Says, he
was not in a melancholy manner then, but yd
his face was familiar to deponeut^ by depooeot*!
having taken particular notice of it on account of
the concern he expressed when deponent iole:-
ceded for him. Says, that when the boy weat
to school in Proper- lane, deponent was about 22
or 23 years old ; says, he never beard my lonl
say lie was his son, but that he was generaHj
reputed to be so ; says, lord Altham left Proper-
lane about the beginning of Alay, 1734, tad
went to Inchicore ; that deponent went to
France about the 27th of May, just after lord
Altham left Pn)per-lane, and returned to Dub-
lin in August ; says, he never enquired for tie
child after his return from France. Beiag
asked if he knew Thomas Byrn who lived io
Proj»er-lanc ; says, liedid: Being asked n here
Thomas Byrn lived when his father was io tbe
country ; says, lie lodged at one Keily's ia
Proper-lane: being asked, if be thoii^lit be
should have known Mr. Annesley if he b»ii
met him accidentally ; says, he belitvei be
should.
Amiv Bush, esq. sworn.
Says, he remembers when he was in the col-
lege of Dublin, he knew a little Iniy abuut 10
or 11 years old, who got his subsistence- at tbe
college by running of errands ; that he Wdi
called James Annesley, and deponent \t a^ told
he gave himself out to he lord Attham's sod;
says, that he took him into his service aud
r.iaiiilained and cluthed him, and paid for bis
lodging, and intended to take him to the cood-
try ; but that upon the boy's assuring him be
was lord and lady Aliham's son, and often td*
ling him so, and adhering very {larticularly al-
ways to the same story, deponent wrote to the
country to his grandfather, acquainting bim,
that he had taken a little boy to be bis servant,
who said that he was lord and lady Altbaro'i
son ; whereupon his grandfather, in answer ti
his said letter, wrote, that no such person was
a fit servant for deponent, and directed deiKmeot
to discharge him ; whereupon deponent ac-
cordingly discharged him. Being asketl if bt
should have known that same person if be had
met him accidcntallv ; says, he thinks be
shouM hare known turn, bat ing so itroiig ■»
tri nfAnglesra^
A. D. 1713.
[1198
could have
; says, he
ey*s loilgf-
} troni Mr.
onrnt, hut
e had heen
lay<t ; that
nt believed
at the cul-
rht to Mr.
imoncc se-
im at firftt
illect your
icct your*8,
»neDt says,
:he cyllejye
•ed to view
imc person
y tleptmeni
imc pemon
aforesaid
icrally hc-
s lord AI-
rht hy his
s not, but
:>v said, it
athcrkrpt,
mcnt oFlen
Altham's
; was ; re-
him thus :
u are lord
ire you so,
answered,
y Allham's
mie story,
ouhl have
lieved him
toidd have
;e him as a
ry, ihoujrh
uiv lord's
re my lord
a \\v. lived,
i an imprO'
. lord's son
?tood cerc-
i^crhaii.-: he
have taken
i^hc knew
\\t\\ depo-
s!)0C8 nor
I that used
V long ago
says, he
about the
lurlvrecol-
there <ir.1t.
:ven years.
^ for many
him ahniit
that he knew the son at Dnnmahie, and fvai
well acquainted with him when he was in dis*
(Trace with his father, for he used to cooh* to
visit deponent, and de)M>nent often relieved and
supported him, and recommeuded him after-
wards to one Parcel! a butcher, because depo-
nent's wife grudged the child's being in the
house, and kept at deponent's expence, who was
a RufTerer by his father 56/. that finding the
child was abandoned and neglected, deponent
went to my lonl to Inchicore, and applied ta
him, and told him the scandalous and cruel
way his son was in, and begged his lordship not
to let the poor child continue as a Tagaoond
about the streets ; that my lord said, be was in
low circumstances, and could not pay for hia
board, nor could he take him into his own
house because of miss Gregory, for he dhould
have no peace if be offer^ to do it ; but m^
lord desired deponent to support him, and be
would not only pay deponent the- money
he otved liim, but thankfully repay what de-
ponent should supply his son with, wheueTer
it was in his power. Says, he went to Du.n-
maioe when the child was about two yeare old,
and deponent had him in his arms ; that he
took him out of my lady's arms, who was hu{;-
ging and kissing him ; says, he la^' there one
flight ; says, he saw the child afterwards at
Kinnay in the county of Kildare, which is near
the riFer Liffey, and is positive that it was the
same boy whom he hail before seen at Dun-
maine ; deponent saw him afterwards at lord
Altham's house on Stephen's Green in this city»
and deponent knew him afterwards, when he
\ient to school to one Carty's in Proper-kne,
where my lord lived at that time. Being ask-
ed, what became of tlic child after the discourse
deponent had with my lord at Inchicore ; says«
deponent kept the boy for about a month or
two, but deponent's wife not being well pleased
with this, deponent grew a little cool to the
boy, who thereupon went away from depo-
nent's house ; that deponent met him, and gave
him a little money, and about three weeks after
that deponent saw him in Smithfield all in rage
and tatters riding a horse ; that deponent at the
s;ime time seeing one Mr. t'urcell a butcher,
with whom deponent was very well acquainted,
nnd whom he Knew to be a very humane, cba*
riluble man, and in good circumstances, and to
have but one child of his own, deponent took
that opportunity of making the poor boy known
to him ; that fiaving directed Mr. Purcell to
look upon the boy as he was riding the horse,
deponent said to Purrell, Could you believe
that (hat boy is the only son and heir of a peer,
who one day or other will probably have a large
estate? To which PurccY I answered, Sure that's
impossible. And thereupon deponent replied, I
alllriit to you h'j is; and if you will taKe him
home, Mr. Pnrroll, and sucrour him, he vill
bf no improptr companion fur your sdo, and
miy live, by God's, providence, to be a support
to yon and*your family. Then de— *"-*• -'•s-
sired Mr. Purrell to ask the W^^
tioiii, while devoucvX nc vo^V^ i0i
ligSJ 17 GEORGE IL Trial in Ejectment hetxneen J. Annedey, esq. [13C0
he mi^i^bt be satisfied deponent had toM him no-
thing but what was true ; that Purcell having
asked the boy several questions, and being
aatibfied of the truth of what deponent had told
him, beckoned to deponent to come to them,
which deponent did, and observing the bov to
be sometvhat melanclioly, deponent said to
him. Jemmy, why dun*t you sprak to me, what
have 1 done to you ? And deponent made the
hoy give away the horse he wus riding upon,
and then Purcell said to him, that if he would
he a good bov, and be advised, he should live
iivitb him aiiuhis wife, and be treated as their
own child. S.i)s, that Purcell took the boy and
deponent to his house, and PurcelPs wife being
informed by them who the boy was, got some
warm water, washed and comoed him, and put
him on a clean shirt of her son's, and told him,
that while she had bread, he should nut want ;
says, the boy was put to bed to Purcell's son ;
says, be has heard ihatPurcell*8 wife is lately
dead ; says, lord Altham was at that time in
low circumslancest and owed deponent's bro-
ther-in law 250/. ; that my lord's not paying did
not arise from want of principle, but ability.
Being asked, if the boy was at Purcell's during
the lifetime of lord Altham ; says, he was, and
that deponent saw him there very often. Be-
ing asked where the boy went from Purcell's ;
says, he heard he went to live with Air. Tigh
at the Hay -market. Being asked when he
last saw the boy he had been speaking of; says,
Jast Saturday, at liis lodgmgs in Cullege-
green ; and that deponent did not see him be-
fore that day, since he saw him at Purcell's ;
that depoiK'nt lives in Cork, when at home;
Ihat u])on hearing of Mr. Annesley, deponent
hod the curiosity to see him, in order to be
sure if he was the youth he had formerly seen,
that thereupon deponent went to his lodgings,
and immediately knew him to be the same per-
son whom he Knew when a child, and said,
there he is (pointing to Mr. Annesley iu Court)
1 am positive that is the man.
[Cross- examined.]
Being asked what affair it was occasioned
his going to Dunmaine ; sa^s, he went for
money ihat was owing to him for lace, hcad-
dresst'S, handkerchiefs, stockin^^s, and other
things he formerly dealt iu, which my lord had
bought of deponent. Being asked, what bu-
siness deponent's brother in law followed ; says,
he kept an inn near 2S mill) field. Being asked,
in what >ear, and what time of the year de-
ponent went to Dunmaine; says, that about
April 1717, or 1718, deponent went to the
races at the Curragh* of Kihlare, and from
thence went to Dunmaine. Bein^;: asked, if
he saw the lady Altham there ; ba>s he saw
her at Dunmuine, or at If ust saw a lady there
who passed for lady Altham. Being asked,
what sort of woman she was ; says, she was
prett}' tall, and round faced, and that she was
* It is the place where the king's plate is
run for yearly.
2
dressed like a woman of quahty ; says, be
never was at Dunmaine aller that time, wlea
he saw the child. Being asked, if he e^er
heard the name of the nurse, or of Joan LaiTu,
or that the lord and lady n^ere sepantfd;
says, he never did hear the name of the
nurse, or of Joan Lafian, but beard of tbe
separation, and that my lord and lady parted
soon after deponent was at Dunmaine ; savi,
he went often to see my lord when lie lived
at Kinna, and after deponent's return fmn
England where he had been for sometime.
Being asked if he went to England in sprie;
1717 ; says, he cannot tell whether he west
to England tbe same year he was at Dm*
roaine ; says, he was several times at Ris-
na, his business otleo calling him thither;
says, the child was five or six^ears ukl wfatt
deponent was at Kinna. Being asked bov
long it was between deponent's seeing the cbiU
at Dunmaine and at Kinna ; says, he d«f
not think it was three years ; says, tbe cbiU
was then in a coat and breeches, and had a totir,
and remembers the tutor called him to l^
hearse bis lesson beibre deponent ; says, Ifai
when deponent was in Dunmaine the cbiU m
in petticoats, and had a servant to lead biis;
says, he saw the child atlerwards in Stepbfa'i
Green where lord Altham lived before he ircrt
to Proper- lane; remembers my lord's Urof
in Proper- lane, but can't say bow km; it
lived there; says, his lordship removed fraa
thence to lacbicore; says, the child waiiWM
11 years old when he was at Purcell's, ami bW
the small- pox whilst he continued in lhlt^^
mily. Being asked where deponent rentoiH
to when helef\ Dublin ; says, he went toCoHt>
Being asked what time the debt which m
owing to deponent was contracted ; sayi, it
was af\er the year 1715, but that his |i|Wi
bo<iks being left in the hands of anotber, u'
and not in deponent's power, he cannot ben
particular as to the time as otherwise be migk
nave been.
John Purcell sworn.
Says, he is by trade a butcher. Beiflf
asked if he ever knew a boy called Jamei Ao*
nesley ; says, he did. Being desired lo g^
an account to the Court and the jury liowk
became acquainted with him ; says, dcpunert
ha|)peued to go to Smith field on a WednesiUj
night about seven o'clock in the eicoioii
where he met Mr. Dominick Farrell, an K-
quaintaiice of his, who shewed him a linle
boy riding on a horse, in a poor and loett
condition ; and said to deponent, Purcfll, ii
not this a melancholy sijjflit to sec a noblcmiB'i
child in that condition ':* That thereupon dep^
neut asked Mr. Farrell who the chihrs taiur
was ; and Mr. Farrell told deponent, it ail
my lord Altham. That deponent being ffll^
prise^l at this account, aske<l Mr. Farrell vM
the meaning was of his father's suffering Im
to 1^0 in that condition ? That the b(*y nfll
certainly have bi'cn guilty of some Vrr? M
tricks to induce his father to neglect hA ■
and Richard Earl ofAr^lesea,
A.D. 174S.
[1S08
iner. That Mr. Farrell told depo-
ras not owing to any fault of the boy's,
i* inlluence of a mistress whom my
doatingly fond of, and who had taken
ithy to the lioy, and Mr. Farrell re-
led Lira to deponent as an object of
hat thereupon deponent called the
told him that if he would promise to
d boy, deponent would take him under
and that he should nerer want while
had it. That on hearing this, the boy
down and thanked deponent in the
'iicst manner. That tiien deponent
home to his own house, and intro-
im to his wife, telling her, he had
her a present, and desirmg her to take
le child, who might one day or other
make her amends for relieving him.
[)onent's wife asked deponent who he
d deponent told her. Tliat immedi-
fetched a pot of water, and some soap
I and washed the child ; and put him
n shirt of deponent's son's, and grew
i of him. Says, most people used to
toy my lord. That in some time after
took the small- pox, and all proper
I taken of him in deponent's liouse.
tcr the child was recovered of the
c, a gentleman, (who was then called
Annesley, and is the now defendant,
of Anc^lesea) came to deptnent's
id asked if one Purcell did not live
nd said, he supposed they sold li-
hat the gentleman had a gun in his
id sat down, and having called for a
er, asked deponent, if he had a boy
ouse, called James Annesley? Tx»
iponent answered, that there was such
the house, and called his wifej and
ft gentleman wanted to see the 'boy.
e child was sitting at the fireside, and
tely saw Mr. Richard Annesley, though
not see the child by reason of the
wherein he sat. bays, tlic child
and cried, and was greatly aflfrighted,
that is my uncle Dick. Says, that
e child was shewn to the defendant,
80, Jemmy, how do ye do ? That the
lie his bow, and replied. Thank God,
(11. That the defendant then said,
u know me ? Yes, said the child, you
mcle Anunslcy. That thereupon the
t told deponent that the child was the
rd Altham who lived at Ynchicore. To
nonent replied, I wish, Sir, you would
his father, to do something for him.
iked, if he is sure Mr. Richard An-
»ld deponent that the child was lord
( son ; savs, he is sure he did, and
nentioned that the child's father was
e. Being asked if deponent under-
t he meant that the child was lord
I bastard ; says, he did not. That the
led him uncle, and begged of liim to
bis ftther to send deponent something
I htndiome for bis kindness to him.
mvpon depoBvnt told Mr. Kicbard
Annesley, be desired no gratuity, but wished
the child's father would take him into his own
care. Bein^r desired to repeat what Richard
Annesley said to the child when he came in ;
says, he called him Jemmy, and asked him
bow he did ; and told him he was glad to see
him. Says, that the child, to the best of de-
ponent's memory, told his uncle he had fallen
mto the bauds of good people. Says, that
sometime afterwards the child was told of the
death of his father, and that he was to be
buried at Christ's church ; and the child weut
there and saw the funeral, and afterwards
came home all in tears. Being asked when
lord Altham died; says, in November, 1727.
That in about three weeks after my lord's
death, Mr. Richard Annesley, (who was then
called lord Altham) came into the market a
second time, and sent a man (who belonged
to one Jones a butcher) to deponent's house,
to desire that the child might come to the said
Jones's house in the market ; that thereu]H)n
the child came, and told deponent, that his
mistress (meaning deponent's wife) wanted to
speak with deponent ; that deponent accord-
ingly went home, and was told by his wife,
that the child bad been sent for to Jones's
bouse, but that she was afraid it was some
trick of his uncle's to use him ill, and that
she did not care to let the child go to Jones's
without deponent; says, deponent thereupon
bid the man return, and tell them the child was
coming ; and then deponent took a cudgel in
one hand, and the child in the other, and weut
to the said Jones's house, where deponent saw
the present earl of Anglesea (who was then in
mourning) with a constable, and two or three
other odd-looking fellows attending about the
door; that deponent took off his hat and sa«
luted my lord, which he did not think proper
to return ; but as soon as be saw the child in
deponent's hands, he called to a fellow that
stood behind deponent's back, and said to him,
Take up that thieving son of a whore (mean-
ing the child) and carry him to the place I bid
you ; that deponent asked hiui whom he
meant by a thieving sou of a whore ; Damn
you, (replied my lord) I don't speak to you,
out to that thieving son of a bitcli, I'll send
him to the d 1 : upon which deponent said,
My lord, he is no thief, you shall|not take him
from me, and whoever offers to take him from
me, I'll knock out his brains ; that then depo-
nent took the child, (who was trembling with
fear) and put him close between his legs.
Being asked how long it was after Mr. Richard
Annesley came to deponent's house that be
sent for the child to Jones's; says, it was
about six or seven weeks, and, to the best of
deponent's remembrance, in the month of De-
cember. Says, he asketl the uncle, by what
authority he would do what he threatened ?
To which the said Mr. Richard Annesley
made answer, that he could not make his ap-
pearance at the Castle, or any where, hut that
he was insulted on that thieving son of a
whore's account. That thereupon de|K)nent
4H
1203]
17 GEORGE II. Trial in Ejectment belvoeen J. jinnesky, e§q. [1204
sail], he was surpriznl that a gfpntlcinan, who
made the appearance that detemiant did, should
shew so mticli malice to destroy a poor crea-
ture that Kas 110 cxpcncc to him, cither for
clothes or maintenance, thoug^ii it would better
become him, who was the child's uncle, to
provide for him, than to snffrr de|>oncnt, who
was a strano^cr to him, to do it ; that the de-
fendant expressed a {^rcat deal of an^er at his
not hcinir aide to compass his ends ; and ailer
9omc high words had passed between them,
deponent seeing the constable go off, went
away with the child in his hand, and carried
him home safe to his mammy, (deponent's
vifc) as he called her. Some time after, de-
ponent saw a constable Inrkinz about his
house to carry aw«iy the child it lie could, as
deponent heiicvei-. ; sa^'s, the child continued
trith deponent till Fehn.ary, and then went
away without rlcjioncnt's unowledge ; sa3*s, he
tvent to one Mv. Ti^h's at the Hay market, as
he told deponent !:t»ine time after ; and Ihe
reason lie j;^ave dcpc:nent for pfoifiar away was.
That ha saw so many people coming about
the house ai\er him, that he was afi aid of being
taken away by some of them. Eeiiig askecl,
ifi'hether he should know the same person now
if lie saw him ; says, that he pitched upon
Mr. Annesley amoii«^ serera!, the fiist lime he
rame to this* kingdom, without the least hint
being given liiin ; and deponent pointf d to him
in open court, and swore, that Mr. .Annesley
"was the same person, whom he kept in his
house, as aforesaid.
[Cross-examined.]
I5cin2f asked what time it was that Farrell
shewed him the boy in Smilhlieli! ; sny^. in tiie
year 1726. or 17uV, and that d«j!'M!c:'i heard
loril /lltiiam lived then at IiichiLurc. lie.'ng
asked what time it was lord Altham died ;
says, he died in November 17'2C), or 17 V7 ;
that the boy continued wUh deponent abnut
eleven months ; remembers his to',.'ii:af hur..^
to deponent's house from lord Altham's hurial ;
says, he ran from deponent's houye to Chriit's
Cfiurch to see it. Beinn; a«Kfd whether dei:o-
neut did believe him to be lord Althatn's son
when he took him into his houjc ; says, he
did l)elicve him to be lord Altliam's real na-
tural son, from what Fan ill told deponent,
who likewise mentioned to deponent, that the
child had been in his care, but that his wife
thought much of it, and that he wasobli^^ed to
put him away to keep his wife in temper ; that
deponent had a school -master to teach the
child to write. Being asked if deponent ever
went to Inchicore to s])eak to my lord about
the boy; says, he never did, but that he once
determined to have gone therr, only tha: he
fvas advise<l, that my lord was a passionate
man, and uuuKl not value the shooting him
through the brad, and that it woubl be of i.o
service to thu child, because of the woman my
lord kept in the house ; says, that the defen-
dant was called captain Annesley when he
came tu depouent's house, and told deponent
he was brother to ibe child's father, and fays,
that the child called him uode. Being asked
whether he did not kno^T that a sod is to in-
iierit the title of his father ; says be does ; but
tliat not being skilled in law aifairs, be coald
not tell why the boy did not succeed my lord
Altham his father ;*but says, the boy went to
; Mr. Ti<^li's, a gentlemau more capable of soch
sort of business than deponent. Being asked,
if he enquired whether lord Altham bad toy
estate ; says, be did not. Being asked if be
told Mr. Tip;h, that the boy was lord Altham^
son ; says, be did not ; that he was indiffereit
about the boy, because he went awaj' frta
deponent without his knowledge ; does not re-
member that he apprized any other person of
the family that a son of noy lord Altbam*s wu
in his care. Being asked if be heard thM
captain Annesley (the present defendant) b^
came lord Altham upon the death uf the late
lord ; says, he did, but that deponent did rM
care to interfere in that matter, as lon^ as niigbt
had overcome right; and as the boy weutavij
from deponent without his knoulf'fge, defM>-
nent did not think it inrui.ibent ui.on bim lo
meddle in it. Being a^ked if the bov im
sharp ; savs, he was. Being aski-d nhethcr
he heard the boy say any thin'.; uf h:s right ti
any title oreitate; says, he heard him say, he
ho];ed to he eaxX of Augiesea. Being ai&ei
how he knows the boy uent to Mr. Tigh^f^
Ti>;l!. Bding aslvcd irw he kno^^s it wasi
cunsu'ilc that cafiivj al iit his house, an J that
he IniUcd iorthe l.o^ ; says, he loo.QeJ liLea
tuiistiiljje ; that ore day li;^ li-lcd up the latch
I of df^pr-uen'.'s door, and v- hen he Yvnnd Ire was
I pcrei'ivf'd, hr ran ar»:ij. . Bcini; nskcd ifLebe*
j linviJ t!..ii the {.■iv>v:it ('..Mi iHianl iuteiit'eil tie
[ boy any mibciiiLi*, v.bon dei:( nei.t went U
' Jii:.es's ; J-ay^j, he di«l suspect that the defen-
, dai.r i.;t(;riiicd iiiui I. arm. Being asked «by
j he (lid lict then aj ply lo iome justice of peace
. or ^tlicT u>np;i*li\itL' i .:• redress ; says, h: (U
' r.ut erjo to j;j to la;v a!iOut it, biu ll.atbe itx-k
I care to krcp, the boy v.U^c within doors, al'ief
the dcfi n ';i.it had Liadc this attempt. Bciog
, asked in >^ iiat part of the house defendant «ai
I when deponent found him at Jones's ; n\h
\ he wr.s in the kitchen, and that t!ie constable
' stood in the entry behind deponent's back, and
two or three without side of the door ; that tbe
I boy said to deponent, Dear Sir. don't Itrt tl<ea
take me away, that's unele Dick, th'^y ^ull
' destroy me : upon which deponent tnli bin,
' he would lose his life bel'ure be should l4
taken from him ; says, that some peofde hear-
ing the noise came and asked depeoeut if
he wanted any assistance. Dep?:ieDt beiflf
desired lo name some of the people wbi
came to his assistance, be named Mr. Bif«
' ncll, who he suid was dead; says, tbeOQB-
. stable went away ; cau't tell who tbtt consteUl
or the other rufhans were, never ha%ingiBn
them before ; says, the boy remained with di-
- ponent about two mouths ailer that ; and ai
I daponeut thought all things oror, he made Ub-
I
and Richard Earl ofAngfeseMi
A. D. 1748.
[1805
jiy without going to a magbtrate, think-
imseir able to protect the child. Being
if the child said he was lord Altham's
lays, he did ; says, Dominick Farrcll told
ent that he had seen the child at Dun-
in my lord's house, and that hi5i mother
relation of the duke of Buckingham,
nsked what sort of a sou Farrell told him
ild was ; says, that he told deponent the
Tas lord Altham's real natural son. Being
if he was positive Farrell told him he was
Itharo'i real natural son ; says, he is posi-
I did. [Hereupon Mr. naniillon, one of
'y, asked deponent, what deponent meant
'eal natural son ?] Deponent answered, I
a son ^ot by lord Altham's wife. Being
by the (defendant's counsel, whether the
t defendant, when he came to deponent's
did not say the child was lord Altham's
1 son, as tarrell said he was; says, he
lot remember that his uncle called him
I son, but said that he was his brother's
ind that lord Altham was his father,
asked, if he knows Mr. Churlton the at-
■j or Mr. Stone; says, he does know
Being asked if erer he told them, or
kly else, that he saw the boy a ship-
; says, he did not, to the best oihis know-
but that his son might tell them so,
asked what the boy called deponent's
says, sometimes he called her Mammy,
mes mistress ; says, he kept the boy, m
that when he came of age, he might
biniself to be lord Altham's son, and re-
his birthright; that the boy never did
ibg for deponent, but sometimes ran of
s ; says, he has heard the boy went on
oard. Being asked if Jones was an
: roan ; says, he was ; but heard he went
about the streets, telling; every body he
lined by lord Altham, the present dcfen-
says, ne gave the boy no ill usage that
induce him to go away, but that he
If during the time he was with deponent,
lut all night Twhich was but about three or
mes in all) ueponent corrected him for it
if the times.
IS ended the third da^'s examination of
ff's witnesses, about eight o'clock on
ly night the 14th of November : and the
, by nke consent, as before, which was
1 by the parties and their attomies, and
I open court, adjourned to the next morn-
nine of the cioclc.
Tuesday, November 15.
'■ Court met according to adjournment, and
y being called over as before, answered to
aaines, and then the plaintiff's counsel
did to examine their witnesses, as fol-
^Icrmf Askf gwt* one of the Attorneys of
ba GmiI of CommoD* Pleas, sworn.
Ih Jm wif Mqoainted with the late lord
4
Altham, and that shortly after bis death de-*
ponent happened to he in comuany with hie
brother, the present earl of An^lesea (the now
defendant) when a gentleman m the company*
having mentioned that there was a boy at lord
Altham's burial who made a great noise, and
cried, and called himself lord Altham's son ;
the defendant made answer, and swore he was
an impostor and a vagabond, or words to that
effect, and ought to be transported. Being de*
sired to tell the Court how he came to be in de-
fendant's company, and what was the occasioa
of this conversation ; says, that soon aAer the
late lord Altham's death, deponent was in com-
pany with the present earl of Anglesea, then
lord Altham, (deponent being concerned in bis
affairs) and that either one Cavenagh (a dancing-
master) or oue Wilkinson, (persons who used
to attend his lordship) having been sent by him
to Mr. Hawkins king at amis, to desire him to
enroll my lord as baron of Altham in the place
of his brother the late lord Altham, came back,
and gave his lordship an account in presence of
this deponent, that Mr. Hawkins said he could
not enroll him, for that there was some reasoa
to think, that the late lord Altham had left a
son, for that a boy has made a great noise at
his funeral in Christ-church, crying and telling
every body aloud, that he was the son of the
late lord Altham. My lord was angry at hear-
ing what Mr. Hawkins said ; and declared,
that the boy was a vagabond and impostor, f
said, that if he was a vagabond, there was a
method to get rid of him, which was to
get him indentured at the Tholsel and
transported : deponent believes mv lord said,
the boy was a bastard, though he gave no
other reason to induce deponent or the rest of
the company to believe him such, than his
lordship's speaking in an angry manner. That
depouput thereupon said to my lord, that Mr.
Hawkins's refusing to enroll his lordship might
not perhaps be on the boy's account, but be-
cause he wanted his honorary fecK; whereupon
my lord said, that if that was aH, he would sa-
tisfy him : And deponent says his lordship soon
after took his seat. Being asked, if he did not
afterwards hear the defendant say, the boy was
transported ; says, he never heard my lord say
the boy was transported; but that some-
time after the boy was gone, upon some of the
company's talking of him, the defendant said,
he; was 'gone ; and that he said it in an easy
manner, without any heat.
[Cross-examined.]
Being asked, when he first heard of the boy;
says, he never heard of him till after the death
of the late lord Althum. And deponent has
dined with the late lord Altham, and never
heard him say he had a sun. Nor did de-
ponent ever hear him say who waM to inherit
nis estate. — Says, he never heani any person re-
puted to be his heir but the defendant. Says,
the late lord Altham died intestate ; and that
the defendant took out administration to him«
Being asked, where it wm my lord said that
IV GEORGE 11. Trial
1207]-
»aa GTone; savs. .. — --j ...
usual acquaintanre.
■ Being askatl, irii^i:aiisiilu^ tlcpcinGm uboutllie
bO}'iBti'au>>|M>rUti(iQ: says, be di J nut.
Alark Bi/rn sworn.
Snyt, lie liaa knowo the <tpfeoi)ant a long
timn, but citn't tell ilireclly botv long-. Beiug
dfsired lu give aa accuaal to ilie Court nocI jury
if lie was ul any lirae employed by any, and
wlial uerwHi to transpiirl any, auil wbal boy ;
Sbys, itial about sixteen years ogn, one Donuetly,
* cotMlsMe, Diet dcpunent (hIio wu at that
time tikewiite & coDstable) and Inld ilepunetit lie
llBd a t^od jab fyt bim, which lie was lo get a
guinta far ; and deponem stionid bare a sbare
of it : And DoDuelly desired (Jeponeot lo bo
aiaiig ivitli him. I'Lat ilepuiient accurdiogly
Vent aluDi; with him to one Jones's Iiouimi in
Ormond- market, and the jiroscDt earl of Anjtlc-
Bea wax there (trbo was then called lord Altham)
and there »as a small hoy there, which uiy lord
said (vas hiij btulher'a sun. My lord charged
the boy iviih stealing a silver spoon, and ili-jt
lie was a thief, and desired deponent, and ibc
■aid nonnelly and others, who were there wiib
iny lord, to take hioi away to George's Quay.
Tbat accordingly they took the boy awav. and
carried him towards Essex-bridge; and tliere a
coach Waa got, into wbioh the said Donnelly,
the hoy, and depooenl went; and the coaih
waa ordered to drire down to George's Quay,
■ays, my lord was there aa aoun as the coacti ;
but deponent does not know, whether my lord
walked or went in a coacb or chair. tSayi,
there was a boat wailing at tbeSlip at Genrge's
Quay, and ihc buy was jiul into itby Dunnellyi
and ford Anglesea ivciit into the liont down tbe
Tiver, anil deponent returned home. That next
day Dun net I y came todeponentaodgavehini a
■hilling; whereii|ion deponent ilemandcd halt'
a guinea, as the part which Donnelly bad pm-
iDiaed hira ; but never got it. There was a
' nob followed them when they carried the chihl
sway. That the boy cried very much, which
be belieres occasioned the mob. Saya, tbe boy
told Ihem, he was afraid his uncle was gmug to
kill or transport hini. Biing B»ked, whether
Ihere waa any thing done to prereul ihe tranii-
portalion ; says, he saw nothing done to pre-
vent it Being asked, il Llie boy mpolloned Ihe
lord Altham (the now delbadani] aa his uocte;
•ays, be did. Being asked, when it was he
first saw the boy since this tirr.e; says, he
never saw him siiicethat day till Utely. Being
■tked, it' he and Donnelly had any staves as
constables; says, they hat! not; but that ihey
were publicly Known to be constables. Being
asked, it' they bad any warrant ; says, they
[c™
KB mined.]
Being asked, if my lord was at Jones's house
before deponent ciine ; aays, he was. Being
asked what time of tbe day it was ; says, he
does Dot kquw whether it wad morning or alW-
aooo, hrt iJwr h iru dajligbl. Being' uked
And when the h'i<
soinclbing out ul
that they were t
Being a»krd, »l<> '
warrant forwh^i l.<
Being Bskiil, il' III' 'I'
to transport ihe I'm ■
without trial ; siu'.,
he did not acipmin: ji
helhoughlso. Ill >'j
hoy had on; snyi. Jii •
ifOonDellyisliiing. <ii d.
BeiQ^isked huw lung he li
th»t tiiue',«ByB, he bclwvss ■
Iwo years. Being o«keit, M
ur aberilTs that year; layf.
was BWom in coosinhte hrd _^^
Being abked, il' Dunnellj "^~
job was when he first aiiiA, ""^
Bajs,hedid iml; but Iwlif^ ~^
instructions whutlo do befiii ^^
Being askeil, if he ever aa» -4
(tbe present ilefendunl) belbrt i -4
he bad seen him several timr ^
what my lord said at that ii ^
lord bid deponent takeaway IL. -
deponent took him accordin);! . ^
walked till they came to Eiw ^
they met a coach. Says, be » '
inlu it. That the mob tollowi:'' '^
way to George's Quay. That r. -^
who directed the coach to driti u^
deponent assisted in pulling lli" M
boat, and went alont; with him i\--- I
Says, Donnelly and one James •
(he thinks) wore a livery, held tin ^
asked,if Iteilly was hihlack ; sat,
Tbat deponem did not see him idl i '
George's Quay. Tbat deponenl '
went olT, and saw them row the I
Ihe Walls. Being asked, il' John I'
at Jones's tbat day ; says, he did t .
there. Says, be did not see mylont
time he was at Jones's lill he saw 1
Quay. Being asked, what clolha
had on; aays, he can't tell. Biriut
Iteilly went Into Ibe boat ; says, he ■'
asbeil, lor what reason llicy look coa
to keep Ibe boy from tbe crgwd. Bl
Earl nfAngUtea.
A. D. n\5.
Ilie Quay befoic i Doonplly, J0I111 nnnnclly, the hoy, aiii] ilr|K>« I
on' ; sn^s, about a quarleT ol' nent went inin ibe bnat, nticl lliey ruwril tn • I
(liin Ihnt lay rfuwii ihc rirer as far as Itine'g- ]
enJ,* That when lliev came lu UiiiK's.cuJ iha I
Iwjr ttas |jut on board ihc »hm, which «
"III tn one of his majesty'* pfanioiions,
u been intbrmeil. [On (le[»inrin muilianinf |
IS infarmitinn the couiivl fur the ilH'eudaiit |
ilil liim, he man talk from his own kuow-
ieige anti not from infannDlinri, which ivai t«ii-
firmed hy the Conn.] Tliai my lord went oo
board tlie ship wiili the buy, and nobuily eiss,
-nd tlie boy cried bitterly ; "iid my lord staid
I board B I'evr minutes, and then returned to
the boat, and they rowed bnuk to Geor;;e'»
Quay. Says, he does not know Ici whom that
ship Won eed. Being asked, when it was ba
first san the boy at George's Quay ; says, he I
did not see him till deponent relumed lo mj
lord with llie guinea. Uting asked, if be waa '
acquainted wiib the boy; savs, be was, eier
-■ — "-e was about six yearsold ; that hekoeir
lord Altham'a bouse in Stephen's Green,
Proper-lane; and belieres him to b*
my lord and lady's child. Soys, be heard
my lord Althani (llie present defendant) say.
atoll ; snvf.
ting aakfi], bow he came to give
Ms cauiw i says, be was sent fi>r
uley, the lessor of the plaintifl',
le to Dublin, to whom he gave the
il. Says, tlie boy went crying all
lal there was a great many people
, bui nobody endeavoured to take
X them. Kayi, that Donnelly and
down the steps ; and that the buy
with crying that be was hardly
E. Mays, tli»l Bceeral people eu-
was tlie matter at the Quay, hut
uld not tell them.
Jamct Reitly sworn,
tires now in London, ami has a
«wn. Tliut be knonslhe defendant,
Anglpsca, and lifeil nilh him as a
about 1 1 months, about 15 or IG
Tliat he knew the late lord Al-
i been deait about three moniiis
nt came into llie defendant's ser-
! befure deponent came intu his ser-
ll witli surgeon (Ireen on Arrdn's
I nmeiubcts he leH his service on
■4sy, and after that went to 1i«e
ftham (for he was then called m,
'url of Anglesca.) Iteing desired
Seoount if he was at any lime, and
ikyed hy any person, and whoin,
[mriiug nny, and what boy ; sa;^")
ml I inonth slier be came to lite with
I, he was (with some ccinslables, whose
were Bryan Donnelly, John Donnelly,
!«», and Patrick Reilly) employed by
Bokfornnc James Anaesley. That
'red deponent if he met the boy, to
< Ml alchuu^ and send lor his lord'
•apOBsible. ThatdeponenI andtbi
rreml limes in search of ilie boy
lark Bym was but once with
t they learcheil about SmithReld,
t, aiitldown Urmund Quuy. Says,
I ai deponent came to town from
W received a message to wait
ird at uue Darrenzy's in Castle-
was iDarrird to one Kennelly's
Thai deponent accordingly wcnl
land that my lord was gone away ;
f ■ nailer came there to dsjionenl
!*» Quay, tu inform faim iha'
\ bini there, and deponent
he porter to Oenrge'sUuay, where
U. That when deponent 1
Vd whiapered him to go and borrow
htni. That deponent accordingly
1. Kellv's at the Butcher's Arms.
irr,andgollhe guinea and returned
at Cieorge's Uusy, and gate him
Sand Jepncenl saw mv lord give
Dto Jobu Donnelly's hands, and
hmnelly went M^ay. ISays, theiv
tttw Slip, and Itryan Donnellyand
bronsht the boy, who was imwe-
mto uc boat, uud my lord, Uiyun
: da.y when he w»s affronted for taking
ay llie child's iHrlh-right, that he would
take a coarse with him. Says, deponent used
to hear peojdt: curse my lord screral limes on
tlie lioy 'a account, both before and after ibe boy
was gone.
[Cro
:■ examined.]
Being asked, how lone it is since deponent
came over here ; says, last Snuday was tlir««
weeks. Being nike<l if he is a servant now
to any body; says, he has not been a seivaot
these four years, aud he lives in Kin g'a- street,
Ht. James's, ^Vestmiuster, and sells cambric*
and hollands. Deponent was asked, if he knew
a certain lord ^wbo was iiameil) and whelhur
be was not hia servant; sb^s, he kuowa hts
lordship, but is not at (his time his servant,'
though he is in hopes to be his lorilsbip'a
house-steward at his return to Loudon, being
very well recommended lo him, and that upon
deponent's coming here to g^rc evidence, hia
lordship had given him e protection. Beinf
asked what time of the day it was when lieKot
lo George's Quay ; says, in the allernonn ; vnA, '
it was in the sprmg nf the yenr, and that it wafl
duskish at ibeir return ; says, the ship taj
down below the waits in Ring's.end. Bejiiff
asked liow long il was before ihey rrturnM '
from the ship to George's Quay ; says, he be-
lieves it was an hour and a iitiarler going to 1
the ship and coming from it. Being asked
again who went inln the bout ; savs. my lord
went first into the boat, and Ibat Jack Donnelly,
and Bryan Donnelly, and llic boy, and two
others, whose Dumes he does not know, went in
attenvards, and that deponent waa Ihc lust (hnt
went ill. Being aiked if he knew Mark Byrn
* Uing'svnd about a mile fi'om Dublin,
«'here ihips ate atutioncd Uul siul outwaidi,
laiS]
17 GEORGE II. Trial in Ejectment bdtceen J. AnntsJey^ esq.
dearly prores that tlie name Hennesley in the
Tholsel book, is the fmine with Aunsley in Ste-
plienson's is, that there is no such name as
Hennesley in Nr. Stephenson's book, or any
like it, except that of Annsley." To this the
plaintiff's counsel rejilied, That because the
name of Heonesley diil not appear in Stephen-
son's book, it (lid not follow tnat it must be An-
nesley mispelleil ; for there are SO persons
named in the Tholsel books more than in Ste-
phenson's; so that Hennesley may be one of
the 20 names omittp-d in Stephenson's book,
but was iilainly a different name from Annes-
ley ; and therefore, as the plaintiff's counsel
had proved that Mr. Annesley was actually put
on board a ship, and sent to Pennsylvania by the
defendant, it was incumbent upon him to shew
by what authority he did It.
Richard Ttgh^ esq. swom.
Says, this gentleman (James Annesley)
lived with deponent for some months, when he
was a boy ; that he came to deponent in a very
poor condition, from one Purcell (a butcher)
who lived at the back of deponent's house, in
Phcnix street ; that sometime atler Christmas
1727, deponent's son brought him into the
house unknown to deponent, out of charity, he
being turned out of doors by lord Altham, who
was reputed tol)e his father; and the boy was
in deponent's house sometime before lie knew
of it ; says, the boy ap|)eared to be about 13 or
14 years old ; continued with deponent till he
was transported ; says, there was a 3'ellow
livery waistcoat in the house, w liich was for-
merly worn by deponent's son's servant, and
finding it fitted the boy, dcponeurs »>n put it
upon him ; says, it was not long AtXer depo-
nent missed him from his house, and heard
he was u^one on ship-boaril, and that one Peter
Murphy told deponent the boy was transported.
[Here the witness was intcrruj)ted by lord An-
giesea's counsel, who observed to him,thatas he
was bred to the law« he must know he ought to
cive nothing in evidence from liearsay-] Says,
he does not know by \ihat means the boy with-
drew from deponent's family, the boy having
no occasion given him to lie uneasy in it; says,
lie was rejiuted to be lord Altiiam's lawful son,
and says it was after lord Altham's death, the
boy came into deponent's family, lieing asked,
why, since he thought that the boy was lord
Altham's son, he did not take some steps to
assert his right to his father's estate ; says,
the boy was with deponent so short a time, that
lie took but little nolicc of him or his affairs,
but that if he had stayed with deponent some
time, deponent does not know but he would
have taken some steps to assert his right ; says,
he has seen Mr. Annesley since his return to
this kingdom, and is fully persuaded he is the
same person that lived w ith deponent ; says,
he heard nothing of him since his leaving
Dublin about 15 years ago, till dei>onent re-
ceived a letter about him from a person In
Jamaica, who was on board admiral Vernon's
0Mt| gif iDf u Moofpnt of Uw (uunhhipt the
boy had undergone, and that admin
haLO ordere<l him to be sent home ; t
Mr. Reilly, an agent for the pre
Anglesea, came to deponent's boi
asked if deponent had a letter relatii
Annesley ; that he came from my Ini
sea to desire leave to read it ; says^ he
Reilly the letter, and flesire<l bira to
and copy it, but he said it was very
that my lord would take it as a favou
nent would let him have the letter
would return it the same day or tbe d.'
ing, with thanks. That thereupon
gave Mr. Reilly the letter, but it has n
returned ; says, that a clerk of Mr. d
who was attorney for the earl of Angle
informed deponent, came to deponent,
dnced an afGdavit ready drawn for
to swear that James Annesley, w ho 1
dei)onent, was reputtxl a bastard son oj
lord Altham, which deponent refused t
Deponent further said, it was in A{
James Annesley was taken from liim.
[Cross- examinetl. ]
Being asked whether if he ha(
upon the Imy to bo lord Altham's sc
he was in deponent's house, dei»otiei
have clothed him in an old raggei
coat ; says, he did believe him to lie
tliam's son, yet did clothe bim w
old waistcoat, and would have d'»ur il
he had been sure that the l)oy ^
lord's son ; for that he came to dejion
very poor mean way from Purceli's, ju
the small pox, having the rod marks oi
face ; says, deponent's ow n son is ilL'ad
asked, \t hat he conjectured to hui'.* i
occasion of the hov^s leaving his housk:
he conjectures llie boy was s])irited aw
still believes he was kidnapped ; s3;
Peter >liirpliy,tlieboy who liv«*d \*iili il'
aflcr Jeinniy went uway, told depnnen!
I>een on board of a ship, and had seen
Annesley lamenting and citing, that Ij
had stole him away, and was go:nu i
port him. [The counsel for the di-ti'ii*
served, that this was hearsay onl} ; t
the counsel for the plaintiff answered.
de|>onent was asked as to his belit-i', hec
tell the ground and reason of it.] U
being asked, if he afterwards made
quiry about the boy, or took 'Jtny step:
favour, upon hearing that he was take
by force ; says, he did not, the ship beii
immediati'l V atbM-Mui phv had told liinK
as to the lioy's rii^ht, says, the |>r09reut
\^ould ha\c been iittonded with tmuMe
pence, and there was so little likelilion
|)onent's ever seein«: the lioy again, tb
nent thought it most prudent not to
himself any farther alnint it. fieioj
why he did not inform Arthur, late
Anglesea of this matter, since depone
not but know that the earl had such 1
for the present one, that he would fai
gUd to oave nspoused the right of thi
and Richard Earl o/Anglata.
A. D. n+3.
of bb uncle ; mjs, be had no
b e«rt Arthur, nor diJ hekpow
pod betireeu (he sud lute and
Bradtn gnorn.
r Mr. Aiiaesley, and savr him
14 or 15 ^carH B((o ; that de-
nitier hatine Wn ridio^ nut
nortiiiig;, tfiey culled iu nt a
Bpen, ia order to narra ilieni.
they Mit at the lire a lioy
n and a dead mairrel ; that
, in discourse nith the htiv,
countryman lie was ', lliat the
•n (rishmau. and came from
'e^anl ; thai he iru bom at
Lintine wn(Jaroe«ADnesley;
ioni Altham's son. Says, he
luihi- tnasler or ihe
i by his uncle ;
AntiGsley'!! lace,
lal he told <Ie|)Onenl ol'tlie con-
"■ '" America, he helieveB lilm
W and talked to ^here.
Mr Giprd sworn.
ihe plaintitr Illr. James
.... it waH thai lie ar-
from llie Wt-st-lndies '!
iir.
Bworany prosecution carrird
laintiff by the defendant Tar
is olijccted to 1>y llie counsel
ofcouiMel tor the pUinlilT.
. a ii hruuglil to sheiv that
la, .knowine that llie pluntifir
'• of the family, >■ ion and
hrd Altharo, expended v*st
I ■ proBCCution, which he let
n lor the murder of an unli>r-
lainei, in Middlesex, th<>iii,'h
■tood in no degree of relnlinn
•et, that could ha>e engaged
I up this matter ; and that the
Seoeued being cnnvinceil that
only accidental, had intended
tecution; but that the de E'en-
nay related to, orncquainied
killed, empluyeil u sollcilur,
proKcukion against Mr.
_ greuexpence, and declared
10,000'. to get hiin hanged.
r, that while he labnureil to
r tm mtirikr, he kuew the
I gave ocoasion for the pro-
by accident. And this we
HTCumslBnce proper to lie
b> aheir that my turd An-
«jr Ibe pltintiirn title, took
Mr. Kecorier, (Eat«n Stannanl, esq.) of
counsel for the defendant. Aty lonl, I appre-
hend that the evidpiice nnw ofternl ia not legal
evidence in this cause, becaiu>« it appertain*
not directly to it ; it is a collalerHl thing. It
was proper to sheir the plaiotilf in he the iegi-
tiiiiale son of lord Altliam, and thai he was in-
tilloil to the lands rjecird ; but to produce eri-
deuoeof a trial in Knchuid, ia rerv improper;
in my apprehension, this is no evidence in thia
trial of ejectment. The taking away a perwin,
and secreting him aRer the title accrues to him,
ia a maleriMl evidence to shew that he could
notaascrthis right tooiier; but bow is the in-
dictment of a man for this murder, be it acd-
dental or not, relative to this cause ? For pend-
ing the indictraeot, it was no hindrance lo him
to put in his claitu h hen he picaseil, and to as-
sert his liile.
This ciu«e was tried in Englnnd. Can you
have all the witnesses there brought hc'lbre
you r Could any person concerned lor lord An-
glcsea fui-esee that this indictment would be
inlmluced ? Anil therefore my lord Anglesea
could not b« prepared to have the wilncsaen of
that trial here. I say, it is not proper to in-
troduce it, for what man hving cnold gnatil
against it P
This evidence is offered, ns I appithend, to
raise a preaumplion that the plainlifTis the le-
gitimate son of the lord Altbam, tiecamie the
ilelenilani endeavoured to destroy him ; anil
then the question will be, VVIiether such evi-
dence is proper to be admitted P It would be a
question whether any impropFr measure taken
luilTcct the life of Ihe plainliir would be evi-
ileiK'e i bill where, from their own opening tha
case, il does appear to your lordship oolhing
m'ire than a procceiiing at'cording lo Ihe re-
gular and open course of the law, with humbU
suluuission, that in this case or any case what*
Koever, iit not lo be imputed to a man as a
crime. As they stale il, there was a prosecu-
tion for murder, wbereoa the billing was acci-
deiiial, every homicide in the indictment i* laid
murder; and if there was a prosecution on this
indictment, is it not a material circumstance,
that this indictment must hate had ihe sanction
of a grand Jury ? Here baa been an indictment.
is all that they hate said, and a proseoiilion
upon that indictraeot. 1 desire your lordship
Iu consider, whether my lord Annesley, or any
other person, might not have carried on tli*
pruxeculion '! Nothing is more frequent, In
murder especially, llian ihat the pnwecuiion i*
carried on, not at the ex|>cnce of the emwn.
though the prosecuiion is in the name uf the
oruwn. IVIII it not then be a matter of very
great conEequenre, to say, that Ibia ahall w
in)putcd to a tnan as a crime, aad affL-ot hint
not only as to hii chnracter, but hi< fortune?
Voar lunlship caonol judge nnw whether or
uoi this proBeculinn wait wlitt they would niab*
il appear t<>l>c, without entering into the merit*
of the cause. Il'iw can it appear lo your lord-
ship whether this wa^i a real munlvr, or th«
'wdy by s btourable verdictr
MI9] 17 GEORGE II. Trial in.
And therefore we hope, for the sake of evi-
deDce, that it may not be made a precedent of
in other casea.
Serj. Marshal, for the plaintiff. Milord,
we hare endeavoured to lay before the jury a
apiriting away of the now lessor of the plain-
tiff, at a time when he was extremely young,
not capable of asserting his right, and with
a riew of putting him out of the way of ever
Mserting that right. We now come to offer
evidence, to shew that the malice of tlie de-
fendant did not rest there ; that after he had
actually cansed him to be transported, the lessor
of the plaintiff^ at his return, unfortunately
killed a man ; what we now propose to lay
before your lordkhip and t^ie jury, is the very
extraordinary j»art that the earl of Anglesea
took in that trial ; a trial wherein he was not
any way concerned. When the witness shall
be permitted to tell you what expence the earl
was at in .this prosecution, it will strengthen
that evidence, of the defendant's spiriting away
the lessor of the plaintiff, and shew the de-
fendant's conlinu^ design of removing this
gentleman from any possibility of asserting his
irthright. And therefore we humbly hope
your lordship will permit us to go into this
evidence; and Aubmit it to the jury, whether
there couM be any reason but one tor such an
uncommon proceeding.
Mr. Harwardf for tne plaintiff. My lord, I
apprehend, that every matter which in any de-
gree tends to shew whether the plaintiff was
the lawful son of the late lord Altbam, or no, is
proper evidence to be laid before the jury.
This evidence now offered, is to shew that the
present lord Anglesea, conscious of the plain-
tiff's legitimacy, undertook the prosecution to
take away his life, and spent great sums of
money in it. If it is an act of the defendant's,
it is proper for the jury to consider, quo anitno
he undertook it, whether from a public spirit of
justice, or a private view to take awuy the life
of this rival tu his estate ; for every act of the
defendant that can give light to the jury of the
opinion that tny lord himself had of the plain-
tiff's ri^ht, is pnipe r evidence to be offered to
them. We have already laid evidence before the
jury that we apprehend clearly shews that the
lord Anglesea had, several years a^^o, spirited
away this plaintiff, to prevent his asserting his
right to the estate. This now offered is a fur-
ther proof of my lord Ant^lesea's opinion con-
cerning his right; and to corroborate that evi-
dence that has been already laid before tlie
Court, we have a right to produce if, as a fur-
ther instance of this lord's own opinion, that it
was necessary for him to come at his life at
any rate. The question is not now, whether
the prosecution was just or not ? Whothc^Ir.
Anncsley was guilty or not of the murder
charged on him ? He has been ar;- lilted. I
must beg leave to say, if be had been found
^iity, and got a pardon, anil came to seek his
right in this Court, my lord's carrying on the
prosecution might have been imputed to a zeal
ibr juttice ; but betog acquitted, there is room
Ejectment hdtoeen J. Amwslejff etq
for the jury to consider, whether his
was not owing to some other motive
other end than that of pnblic justice,
gle question is. Whether my lord
being a stranger to the deceased,
voluntary prosecutor, for the deati
who stood in no degree of relation
mily, from a principle of justice, or
some private end of his own ? It i
been very proper for lord Anglesea I
pended such large sums of money
tion of justice, had he been any wai
the deceased ; but as be was not, i
ing such unusual sums in a pros
ways relating to him, more than to
stranger, argues, that it was to ansvi
vate ends, by securing his own t
estate, if he could prevail to have tl
found guilty of murder. If we wei
charge him with any thing that mi^
him in any sort of guilt, the object
have been proper, but as we are not,
carry no weight.
L. C. Baron. This witness was p
shew that the prosecution against tb
for killing a man at Staines, was pro
carried on by the defendant, and i
pence ; w hicli, as it was an attem]
away the plaiiiti(!''s life, his coao8<
sisted is proper to be laid before tbi
further proof of the present defendan
of his own title, and his opinion o
plaintiff^s right : and this has been ofl
out any previous evidence, that the
had l>een convicted or prosecuted fo
licious prosecution of the plaiutiff, c
Court, bcffire whom the plaintiff wa
that supposed niurdiT, had, by i
theirs, declared their opinion that t
cution was malicious, as is frequent
ordering the prisoner a copy of :
ment.
This is a new attempt, apd were it
for me now to give my opinion, 1 6li
it ought not to be admitted.
The prosecution initstlfwas not
on the contrary 1 it is the duty of c
especially in the ease of Mood, to
that the '«ifi>ridor be put upon liis t
thcrafore, without entcrin^jf into the
that case, the motives o*" the prosec
not appear; and those alone can, in
hension, introduce this evidence as f
the matter in iijsue in this cause : i
out gointr fnrther, can say, this p
thoutrh lawful,' was carried on wi
lawful intention P I appriliend the (
judge \i hcthrr the prosecution was I
inaiirious, unless the intltctnient wai
ap^in here ; but as it is a matter wo
liberate consideration, and this trii
another day, i he counsel ft)r the ph
proceed to some other evitlenoe, ani
be insisted on, will give you our opio
morning.
Mr. Baron Mounteney, It will a
me coDcem, to find my&elf undfir i
and Rkhard Earl ofAngletea*
A. D. 1748.
[lfi«
I sudden and immediate opinion
•tion, the contrary sides of which
1 zeal contended for, by ^entle-
i^ure and character in their pro-
le concerned in the present catue:
must be extremely increased,
lave the misforttme to differ in
T from my Lord Chief Baron, or
avrson, for both of whose opinions
^hest re(^rd ; and still infinitely
.he present cause ; the immense
3f which will incline me to hesi-
1 such points, as I should other-
>x(remely clear in. I shall there-
lly avail myself of that opportu*
as my Lord Chief Baron haUi
to mention, the adjournment of
I afford us, of giving this matter
ideration.
isent opinion is, that the evidence
>ught to be admitted ; and the
my opinion is this: Every act
efendant, which hath a tendency
isciousness in him of title in the
aintiff, must, I think, be admitted,
sntroversy, to be pertinent and
sin the present cause : 1 think
»ice now offered hath that ten-
>nsequently is proper to be ad*
ice of the prosecution, in my ap-
ands exactly on the same footing
•nee of the Kidnapping ; (against
least objection was attempted by
s counsel) for I can by no means
distinction of lawful and unlawfnl
seems to have so much weight
chief- baron.
ful act was not therefore, in my
to be admitted in evidence, be*
I, but, because, it had a tendency
I consciousness, as I have men-
defendant : and if the carrying
ution (which must be admittfS
extraordinary, though lawful,
endant) hath the same tendency,
I the same principle, to be ad-
ices, 1 believe, might be put of
>ne by one party, which yet, it
ontrovcrted, would be legal and
nee for the other. One. instance
at present, which I think cannot
dispute. Suppose it could be
he defendant had offered to the
»laintiff a considerable part of his
gesum of money, to compromise
-will any of his counsel say, or
liring imagine, that this would
svid^ce in the present cause?
NDprorabing of a law-suit is not
Uy, a lawful, but is, generally
mroendaUe act.
Ji e? er been esteemed one of the
moat onanswerable arguments
Uid Ihefefore, the fact which 1
if waaU be not only kgal, hot.
in my apprehension, most exceedingly material
efidenoe to be left to the jury ; who wonid be
the proper judges quo ammo such an offer wat
made.
As to the fact now offered to be proved, it it
possible indeed, that the noble lord might take
up a prosecution, deserted (so far as appears)
by the near relations of the deceased (the per*
sons most likely to have carried it on, if they
had thought Mr. Annesley guilty of murder)
merely out of a public-spinted regard to jus-
tice; it is likewise possible, that his motive for
engaging in it might be an interested one-— a
consciousness of r^ht in that person, and con-
sequently that, unless that person could be put
out of the way, the titles and estates which be
was injpossession of would be insecure.
I tlfink the jury will be the proper judges
upon the whole evidence in this case, unoa
which of these two motives, it is most probable^
the defendant acted : and that .therefore the
evidence of that fact ought to be admitted, and
left to their consideration.
This, I say, is clearly my present opinion:
but, as I mentioned before, I shall make use of
the opportunity of considering it further ; and,
if I find reason to think that I am at present
mistaken, I will mention it to-morrow, and
sliall be exceedingly glad to change the opi-
nion which I have now given fur a better.
Mr. Baron Dawson, 1 am very glad that
there is no necessity for our giving our opinioas
immediately on this point, I shall therefore de-
cline giving any positive opinion, as we have
this night to consider of it, and in the meao
time the gentlemen on both sides might look
into the cases to clear it up to the Court The
prosecution here is agreed to be a lawful act,
and is not inunediately relative to the matter ia
issiii^. The difficulty with me is, that if this
be given in evidence, a^ jury may, from a law-
ful act not immediately relative to the issnet
draw an unwarrantable consequence.
If the act were unlawful, it would un-
doubtedly be good evidence, there could be no
other way of accounting for the party's sub-
jecting hinoself to le^ punishment : but
where it is not unlawful, it may be dangerous
to leave the intent to the jury. We will con-
sider of this matter, and give our opinions in it
to-morrow.
The Rev. Mr. Ah§U Butler sworn.
Snys, he is minister of the parish of Tyn-
tem and Owenduff. That he has known Dun-
maine these several years; says, it has no
church in it, but is united to the parish of
Owenduff; and there is no book kept therein
for registering of marriages or christenings.
Joshua Barton sworn.
Says, be knows the present earl of Anglesea,
and knew the late lord Aliham very well, and
has been often in his company and eat and
drank with him. One particular night depo-
nent was in his company at Jnchicore, and did
not part from him tiU about four o'dook io the
12S3J
17 GEORGE II. Trial in Ejectment between J. Annedey^ esq. [l93/k
fDorninfjf ; and deponent remembers he asked
my lord to this purpose : My lord, would you
be ang^r^ with me if 1 tshonid ask your lordship
a question; and his lordship said, he would
not take it amiss. Whereupon deponent asked
bis lon!ship, Pray, my lord, is the Utile boy,
that runs abont the streets of Dublin in such a
floor condition, your lawful son, or a bastard ?
My lord answered, That James Annesley, that
poor boy, is my lawful son by my wife. And
addedj that he could not keep the boy at home,
because of the woman he kept. Says, my
lord at thai time had a pension from the crown,
and was needy enouciph. 'Tis true, he kept a
pack of hounds, but one hound was ready to
eat the other. That deponent kept a farm and
lived at Islnnd-bridtfe ; thai the boy used to be
an and down, and lie in the ditches near In-
cnioore, waiting; to get a bit from the servants ;
and dei>onent saw the boy about two years be-
fore my lord's death, and often supplied him
with meat and drink.
[Cross-examined.]
Bein^ asked if ever deponent put my lord in
mind of the boy afterwards ; says, he did not
think it so ri^fht, as it was more properly his
lordship's own business. Bein^ asked, how he
came to ask his lordship if the boy was his
lawful son ; says, because he doubted it, from
his lordship's taking^ so little care of him;
says, it was 4 o'clock in the morning^ when
they parted, the time deponent spoke to him
about his son, for deponent looked at the hoor
when he came home ; says, that, if my lord
could, he would never let company go away
from him till the morning. I^ing asked if
they were drunk that morninf^ when thoy
{larted ; says, deponent was not drunk, tor that
le remembers his coming home well enough,
and pifrticularly through what field he came ;
and says, my lord was so sober, as to wait npon
deponent to the door when he came away.
Thus ended the fourth day's examination of
the plaintiff's witnesses, about 7 o'clock on
'L'uesday night the i6th of November, and the
Court, by the like consent as of the night be-
fore (which was likewise signed by the par-
ties, and their respective aitornies, and read in
open court) adjourned to the next morning at
10 o'clock.
Wednesday y Novendter 16.
The counsel for the plaintiflf proposed to ex-
amine Mr. John (lifiard to what he had heard
the defendant say concerning the lessor of the
plaintiff, and his title ; and being called upon
to open the nature of that evidence ;
Mr. Uar?rardj of counsel for the plaintiff,
spoke as follows: My loril, the conversation
Mr. Giffurd had with ford Anglesea was to this
purpose : Mr. Giflard is au attorney of reputa«
tioD in England, and as such has been twenty
yean or {hereabouts employed by this noble
earl in bis busincw, aa ha oad oocaiioo for him.
When nay unfortunate dicDt was to be tried at
the Old liailey, that was the tinoe lord Angktet
had greatest occasion for this Mr. Gtffard ; tsi
it will appear to yoor lordship thai lord Aagl^
sea disclosed his intentions to him in this mn-
ner : '* I am advised that it is not prudent fbr m
to appear publicly in the prosecation, but I
would give 10,000/. to have him liaoged. Nr.
Jans my agent shall always attend yoo. 1 m
in great distress ; I am worried by my wife ii
Ireland ; Mr. Charles Aonesley is at law wiA
me for part of my estate, and," says be, ** If I
cannot hang James Annesley, it is better fir
me to quit this kingdom and go to France, mi
let Jemmy have his right, if ne will remit m
into France 3,000/. a-year ; I will learn Froeh
before I go."
Mr. Da/y, of connsel for the defendant, ib-
jects to Mr. Giffurd's being examined, sineiH
an attorney he was to keep the secrets sf Ui
client, and if he is a gentleman of character, hi
will not, anil as an attorney he on^ht not H
disclose them ; and cited the case of^ColtiHi
Pickering, 1 Vent. 197.
Serj. Marshall, for the defendant. Bat if ■
attorney will volontarily come and disdoieaif
secret, he ought to be heard.
Mr. Blake, of counsel for tlie defendant* ii
attorney or solicitor might not, nor is be M-
pellable to disclose the secrets of his dim;
this is a privilege inherent in theoffieeflfa
attorney or solicitor : but as this privikgska
its source in a public consideration, I M
with submission to better judgment, iniit M
this exempiivc privilege is not merely ■!
solely the privilege of the solicitor or attonifi
but is, in law and reason, the right and pririlf^
of the client. Formerly, persons iorcATctf s
contests and litifj^ations appeared in coott jv^
sonally. and pleaded and enforced their sercnl
demands and respective defences, and bewii
all doubt retained some secrets unrereflMi
but when, from an inevitable variation of thiig^
an increase of trade, and an exuberance of cpfr
Icnce, legal altercations became innnmeraUi,
then it became necessary to employ otben fe
represent the parties engaged ; these perfl*
are denominated aitornies or soliciton, vd
the}', in the nature of things, must unaTOuhklf
be trusted with the most retired and Mdtf
thoughts and actions of their employen,irt
only with respect to suits actually imtitiitci
but also with regard to suits threatened or ii*
tended to be commenced ; for a persoa vit
naced, if directed by prudence, will be e»
ducted by vigilance and caution, equally ti if
attacked ; therefore it is absolutely ncccMvy
to extend this privilege to the client, and id
restrict it entirely to the solicitor, especitlhr tf
there may be some of that profession, whocM*
not be supposed to lie actuated by snch priM-
pies of honour and virtue, as an offict of*
great confidence requires ; I mean the pifiii
now produced to be a witness for the pu"'''^
The case of lord Say and Seal, inMauilisfalft
Reports, I think, is an authority in point
Mr. Recorthr^ for the defendant. II J M
am! Rieharri Earl ofAnglcutt.
: apiienreil in court thpniieUes ;
3 TQulliplied anil became mire
i titUt more peqilfxeil, bolh llie
el of people who thnuld aunil in
f Ibe Bdilur*, and thesf prrsouii are
ttornies. Since ibis baa been thuuglit
y, lU people and all courts bare Inokeil
U cunlideoc<9 betweeu *'..e party and
1 Kreat, ihnt il would be de-
I^aII bu«iiiera, i)' ationites were to
fi«nv8i of their client*. In many
i their eaiktes without titles ; in
bcb lillei, that if their deeds could
If their hanclt, they must lose Ibeir
11' ben persons Wcome purchasers
tonsideratiuns, and get a deed that
M ibeiD, they are not obliged to
%ether Ihey have that deed. Now,
wney was In be exaraiard in every
el mau would tmsl sn attorney willi
It of his estate, if he should be per-
lofler himself 09 n wilness ? If an at-
lad il in hi* option to be examined,
mid be an eulire stop to bcisinesa ; no-
uld trust au attorney with the state of
why altorntes are not (o be eta-
thing relating to ibeir clients or
, because ihey would destroy the
It IS necessarv to be preserved
. This con6ilfnce between ibe
llbeperMin employedjis so sacred
iftbey were at bberly, when the
*! was over that they were eni-
gire testimony in favour of any
itwuuld DOt answer the end tor
tulitiHed. The end is, that per-
My nay fflibstitute others in their
therefore if you cannot ask me,
nan ; for every thing said
I sail) it to myself, and he
Now, the question will be,
B bslituted 7 Be sure, for
(be person employing him. Who
Sptien that lie should be emmined ?
mployer ; brcause utberwise it
ivn 10 fix a confidence in persons,
iwuai iibertv on any account to
Ft and say. While I was emoloyed
•• not in my option to diiclose it,
I am not, rwill unravel all. As
I sake of the employer ibat altor-
lUtuteil, they cannot in civil suit.i
ilbout the consent of the
!, 1 submit it, whether the
W attorney or in the person who
Wj and if in the employer, as 1
be both for his safety •nd advan-
mcy nntber can nor ought to re-
mtruited to him. In pleading, it
attomatiim,' the allorney
coutrary to the rules
quity, that any man
I apprehend it is iiul
a tvrpit couMOmut;
A. D. ITW. [1526
as this man was employed by ray lord Aagle<
sea, he can be asked no other questions than my
lord An glesea himself.
niy lurd, I must submit it, whether an aUar>
ney's testimony should he received, allliough
he olfers to give il ? And in the next place, I
submit it, whether this kind of Irstimuoy
in this criminal case ought to be receiveil f u
would be very little satiafaeliun In a client to be
put to apply to ibe Court for an attachiDent
agaiust thig person wbo oHersto lay his evidence
betlirelbe jury, if hi* tesliroony could lie re-
ceived. I apprehend that person is in Iha
place of the client, and as he entrusts him witfi
secrets, he is not to disclose ibetn without his
leave ; Bud if he should diMlose them out of
court, an action of deceit lies against him. And
though an attorney should not insist upon his
privilege, yet it is in the power of the employer
to msial upon that privilege, and to say he ia
the person entrusted ivitb his secrets. Now,
in this case it is much stronger, for here il is
said, that he is employed by my lord Anglesea.
Now, if that party cannot disclose those se-
crets in a civil esse, be ought not, for a stranger
reason, in a criminnl case ; because that is
sulijectiDg his client perhaps to a criminal pro*
secutioa .
Mr, Lte, of counsel for Ihe defendant. My
lord, if ibe altoroey confess judgment tipoa
record, il shall bind the conutor, though done
without warrant ; and the reason is, that the
attotney appearing fur the party is, since the
statute of Merlon, considered as the party
himself. If llieu tbe attorney and parly are
considered as one person, why shall the oneb«
effered to be examined iu this cause, when llie
uther ctinnot ?
Serj. MariliaU. 1 do adtnltiu some cases the
attorney ought not to be permitted to disclniii:
tbe secrets of his clieuts ; but that must be
where the con Rdence was necessary and law-
ful; but here the trust was unlawlul, and the
altorney could not conceal it without breach of
bis oath, as on attorney, which was to du right
to all men. This was a criminal secret, thai
was not only to aflecl the plaiotilTs iiroperty
and life, but also to acquire a title in wtiici] tiie
public were interested ; so that it became the
duty of the atlorney to disclose il
called up accordingly.
Mr./o/mCi/orrfswo
Q. Are you an attorney of at
what
an allorney of the Coi
Pleas in England, and a selicitor of the High
Court of Chancery, and sworn and adntitled at
such by virtue of the act of parliament
({. bid you know the defendant ibe earl «f
Angleaea ?— jl. Ves.
Q. Wereyun ever agenlorsolicilorforhiaiin
any, and what cause ? — A. In the year 1719,
lunl Anglesea employed me to assist liiin on a
particular occasion to make hia defence-
Q. Naute tbe parties.— -J, Uu i
I
1S27J 17 GEORGE II. Tria^ in Ejectment beftoeen J. Amedey, esq. [r J
cated, the king against biin, asRicliard A ones-
ley, esq.
Q. Were you em ploy eel in any other cause ? —
A. In the year 1729, the same year when an ac-
tion was brought S'^ainst him at the suit of oue
George Risden. But from the year 1782,
until he became earl of Aoglesea, 1 uever heard
of him. In the year 1737 I met him in Lou-
don, and he desired me to solicit an aiTair be-
tween bim and his countess that lived at Bid-
ditbrd.
Q, Name the next cause.— ^. Between the
right honourable Maurice Thompson lord
HaTertham, and the earl of Anglesea.
Q. The next.— ^. 1 was concerned in ano-
thm', the same year, and attended it, (it is very
wdl known through the Houses of Lords and
Commons in England) in order to throw a Bill
•at of the House of Commons, for the ezem-
plifving the late earl of Aoglesea's will.
Q, Go on.— ^. 1 was likewise concerned in
a particular cause, between mv lord Anglesea,
in the year 1741, and one Mrs. Simpson of
this place; and have also sued out several
writs out of the Ck>urt of Common- Pleas, at
the suit of my lord Anglesea, against one Hen*
dersoD a Quaker.
Q, Good. — A, I likewise was employed by
lord An^esea in a cause, wherein his lordship
was plaintiff, and one Rachael Cooper was
defendant
Q, Go on.<— ^. 1 issued out writs against
Henderson, at the suit of one Banks, by lord
Anglesea's directions.
Q. Go on. — A. I was sent for, and com-
manded by him to solicit and carry on a pro-
secution against the plaintiff Mr. Annesley.
Q. nave you been retained as agent or
solicitor for the earl of Aoglesea, in any other
causes within these three years ? — A, 1 do not
know; some frivolous thing might have
slipped my memory, but I was not concerned
in any otiier cause, since the prosecution of
Mr. Annesley.
Q, Name the time when you were retained
by the earl to prosecute that murder. — A, The
second day of May, 1743.
Q. The conversation that passe<l between
you and my lord, to which you are now pro-
duced as an evidence, was it before, or atter,
that time ? — A, There were several declarations,
some before, and some after. The conversa-
tions were from the 7th of December 1741, to
the time of Mr. Annesley 's being discharged at
the Old. Bailey.
(}. When was the bill of indictment found
against Mr. Annesiley I* — A. The bill was
found in June, and he was admitted to bail in
July sessions, 1742.
Q, On what day is the murder laid in the
indictment ?—yl. On the first of May, 1742,
the 15th year of the present ki»>r,
Q, Were you agent or solicitor for lord
Anglesea at the time that the conversation
passed, before the 8d of May? — A, Not for
the cause of Mr. Annesley.
Q. Wage aat the othar <a»w» labiMnyi^-
A, The causes were oa writs which
never executed.
Q. 1 desire you may answer directlv,
ther the conversation before the 3d of fis)^^
not on some affair iu which my lord ko\
consulted and advised with you as his
or solicitor, designiog to eniploy you ii
affair?— ii. No, my lord, it was not;
did not ex[>ect to be eoiuloyed by bin %
he having employed Mr. Geoige Gard^^
Mr. Adam Gordon.
Q. Name the people.*^. Mr. Gard»^^
Mr. Gordon. They are attoroies, th^,^.
partners, and 1 received my iBstructioo:^"^
great part, from them ; iny lord ordereil^ _
take directions from them, and I bavei ^^^
tions under Gordon's own haod-writiug,,^,,^
Q. Had my lord Anglesea those '"^m^
tions with you relative to the plaintiff, k.»^
the 7th of December and the Sd of Cl|^^
intending to employ you, or not ?— J. Jg^
was employed, nor intended to be eiofdb^
in any suit for or against him, ^magiki
time.
Q. When did you first receive instrodiM
from Garden and Gordon ?— J. In i ni
after the first of May.
Q. Had you any instructions fron Aei^
ezeept what were relative to the proMCSMi
in relation to the plaintiff? — A. No ; as ii-
structions but what were relative to thepn»
cation.
Q. Did you charge lord Anglesea with of
term fees in the year 1741, reUtive to psrliok
suits ? — A. I believed I charged 10s. U fa
lord Haversham*s suit.
Q, In what term did you charge it?— i- I
find that cause was in the vacation betwcei
Hilary and Easter term, and was coadadfi
before Easter term came. It was depesditf
in Hilary term 1741, and was coocIum
before tlie next term.
Q. Was it de}»cndhig for any time beffft
Hilary term ? — The beginning of it wu tbc
201 h of January, the essoign day before Hi*
lary terra.
Q, Were you concerned for lord Angieiei
from the latter end of November to the beps*
ning of January 1741 ^ — A. 1 was coocerod
in issuing out some writs.
Q. And do not you think, if any suit bd
de|iended \i\\oTk them, you would have bns
concerned P — A, I do not know hut I niigbt.
The Witness goes off the table.
Mr. Frirne Serjeant y (Anthony M alone, eq.)
for the defendant. An attorney shall not disckat
any thing whatsoever in a collateral queiliflSy
that shall affect the pro|)erty of the ciieoL*
* In the <• Trial at Bar/* dec. the folk>«ii<
speeches arc inserted after this of Mr. Priai
Serjeant:-
X. C B, One Mr. Trevor, an AttoiiM^
was attached in this court, in the caoie ■
Magill against Savage, though be pkiM
that, as an attorney, he ought not to " '*^
bis dicnt'a aecrets.
Old Richard Earl ofAnglcsea,
A. D. 1743.
[1S30
rUdall, for the plaintiff. Mv lord,
se to exaroiue to no fact which came
lowledge a% to attorney, in any auit
he was employcxl for lord Anfpieeea :
Bclares he never was employed in any
in^ to the lessor of the plaintiff, nor
intended to be employed in any suit
0 this trial. We hope, therefore, we
tr to gire in evidence several declara-
conversations lord An^ksca had with
-ss concemin<3f the lessor, his title to
e, and the necessity be apprehended
nder of putting him ont o( the way at
s. We do not propose to examine
» any fiicts relating to the prosecation
Jit m which he was then employed ;
• only to examine him as to the con*
1 with lord Anglcsea concerningr this
lid I apprehend we have nudoubtedly
) examine him as to these points.
ot say, but the gentlemen on the other
I (ifood reason to oppose this evidence,
' it appears in the manner we are in-
it will, must be an evidence of great
I shall first beg leave to consider,
an attorney may be examined to any
'iiich came to his knowledge as an
If he is employed as an attorney in
wful or wicked act, bis duty to the
iliges him to disclose it; no private
is can dispense with that universal
licli lies on every member of the
to discover every design which may
(1, contrary to the laws of the society,
y the public welfare. For this reason
end, that if a secret, which is contrary
blic good, such as a design to commit
murder, or perjury, comes to the
re of an attomev, even in a cause
h(> is concerned, tbe obligation to the
U9t dispense with the private obliga-
ae client : but in this case the witness
to be examined was not attorney to
idant in any case relative to his testt-
And the secrecy of the attorney is
y to the client in that cause only, for
ring on of uhich he is under a noces-
itrust him. For this reason I agree,
itever is communicated to him from
essity ought not to be discloBi>d, even
re cause, wherein he is not comrcrned ;
le client is not obli«re<l to entrust his
fi Jor the Jhfendant, That case was
nrent from the prest^nt one.
revor was required to a:iswer (upon a
against him) what the su Instance of a
which it appeared he hud fonnerly
•mded, it is true, that l>eii)g attorney
Savage, he ought not to disclose tbe
f bis client. But it appearing to the
lat he was bat about fourteen years of
n be copied the will, and was not
itloroey, an attachment was granted
bim, to comiiel him to disclose what
fared of him.
attorney with any of his secrets, but such only
as are relative to, or may be useful for carrying
on the cause in which be is employed ; if he
trusts him with any matter foreign to that,
even daring the time that he is employed, with
any matter which was not necesnry, or any
way material to the cause dependmg, he is
not obliged to conceal it.
I beg leave to say, as there was no nectstity
upon the client to entrust him with it, eo
mutually there can be no obligation upon tbe
attorney to conceal it; for as tiie only obliga-
tion which lies on the attorney to secrecy,
arises from the necessity of confidence between
him and his employer, from the necessity tbe
client must be under to entrust him, it cannot
extend to any case where that confidence was
not necessary, where the client was not under
such a necessity. If this be admitted, tbe
matters we propoee to examine to are quite
foreign to those suits iu which the witness waa
employed for the defendant. My lord Anglesee
was indeed under a necessity of^ent rusting him
with all the evidence that bethought necessaiy
for the prosecution carried on ag^ainst tbe
plaintiff in England, and the attorney is under
au obligation of concealing that evidence : but
was iie under a necessity of telling the attorney
be wanted to put this man out of the way, or
that he was entitled to his honours and estate f
This was a secret he ought in prudence to have
kept withiu his own breast, and not to have
discovered. This was a secret not necessary
to be communicated, and therefore not to be
concealed.
Upoi^ these principles, thererore, 1 should
submit It to your lordship, that we must be at
liberty to examine Mr. Giffard as to those con-
versaiions which were no way relative to the
matter in which he was then employed by the
defendant, and which, if trne, as they are re-
presented to us, import a design contrary to all
laws of nature and society.
Mr. IVahh^ for the plaintiff. 1 do admit
that an attorney shall not he examined to auj
fact disclosed to him by his client as an attorney,
relative to a cause wherein he was employed;
lx?cause a client must of necessity rntrust the
secrets of his titir to his attorney, to enable
him to conduct hi«i ^iiit ; and thereCore tbe at-
torney stands in the place nf his client, who
cannot be examined as a witness against him-
self. But this role can never he extended
either to a case where the matter uas not com-
niunionted to him as a secret, in the cause
wherein he was employed, or before be was
employe<l as attorney in that cause ; because
there the client was not unMer any necessity of
disclosing the fact to him; and if it were other-
wise, this inconvenience must happen, that no
attorney could ever be a witness against a
person, if he ever hapiienetl, upon any occa-
sion whatsoever, to be his attorney. The
question then is, whelhrr the fact to which we
want to examine Mr. Giffard was communi-
cated to him b> lord AnijliKpa, as hii lordship's
atiornry, or not!' or whether he was actually
1231] 17 GEOUGE II. Trial in Ejectment between J. AmmUy, esq. [ 183
employed by bim in the prosecotion of Mr.
ADDesiey, at the time the discourse we would
examine him to happened ? It is true, Mr.
Giffard had been attorney to lord Anglesea in
tereral suits before this conversation happened ;
but he could not be at that time employed in
the prosecution of Mr. Annesley ; because it
appears, that this discourse happened before
the Goroner*s inquest sat, or any prosecution
bwm on that account; so that I apprehend
this case does not come within the rule I men-
tioned, and that Mr. Oiffard oufi^ht to be ex-
amined. But besides, what we would examine
bim to is, not as to any secret in the prosecu-
tion itself, but only as to lord Anglesea's inten-
tion and design in engaging himself in the pro-
secution. But I must mention another reason,
which puts this matter out of doubt, aud that is,
that this prosecution was at the suit of the
crown ; if any secrets were in that suit, they
were the king's secrets, the revealing of which
could be no inconvenience to lord Anglcsea, or
affect his property ; If an attorney is a sub-
scribing witness to the execution of a deed by
his client, he does not attest it as attorney, and
therefore he may, reveal his client's having
executed such deed.
If a conversation happened between an at-
torney and his client, even relating to a cause
he is concerned in, but before he was concerned,
he may disclose it ; and therefore, my lord, I
apprehend, for these reasons, that Mr. Giffard
ought to be examined as to the point wo bare
opened.
Mr. Harjcard.* I apprehend, that what is
contended for by the gentlemen on the other
side, is not supported by the authorities they
have relied on : oecause, in all the cases quoteij
by them it does appear, that the attorney pro-
posed to he examined, was the attorney or
agont in that very cause that was then to re-
4.*eive a determination, and it appears that the
vecrcts to which he was to be examined, were
^ In tiie ^' Trial at Bar," 6cc. this speech of
3Ir. Harward begins thus :
*< If even an act of parliament was made,
that no attorney should disclose the secrets of
his client, yet that act, in numberless cases,
would have no weight, because no act whatso-
ever can be consistent with reason which would
subvert the laws of God. And to conceal a
crime, is in some measure to l)ecome a party
to it. Surely there never was a stranger in-
stance of iniquity than the present ; a design of
the blackest dye aii^ainst the life of an innocent
i)erson. And shall a man ; because he has once
been concerncil as attorney for the assassin,
have his month shut for ever? Such a doc-
trine would be to protect villainy a^rainbt all
virtue and innocence. Shall an attorney stand
by and see a man kept out of his estate and
honour, and all that is dear to him, and not
speak, because the criminal has once bevn his
client? no sure, unless he has a mind to be-
come a party to the crime by the concealment
of it."
1
secrets that came to his knowledge fftmi |
client concemuig that very cause. So that H
cases quote<1 do not umiotain the objeel^
made ; for this witness was never in this ca>
employed as agent, or in any other, io wk^
the title to the Anglesea estate was oootrove^
as it is here ; so can't be said to viobte
confidence reposed in him, as to any h^,
concerning the title to the estate; for
could not come in question on the prase^^
for murder, or be in any sort necessary ^
client to reveal to him to carry on the
tjon; and therefore not within the ra"
down, That the client has a privilege to .
his attorney from disclosing any of the
communicate«l to him necessary to ft::^2ffi
the cause be is employed in : And in "% ^
of Cutts and Pickering in Ventris, it warn, ^^y^
that if the secret came to him from hasl^
before he was retained, he might bo cjcani^.
and a retainer in a capital prosecution nnx!
in Uie nature of the thing, imply aav trtgm
the attorney to keep the secrets of the tides
an estate, no way to be in question in tbitpt-
secution : and the case of lord Say and Sol
mentioned, makes rather for us tbao tpm
lis ; for there the attorney employed to sAr
a recovery was examined against his dial ■
to antedating a deed to make a teoiotts Ae
Proccipe ; for that the time of executing t M
could not be called the secret of his clieut; wi
the rule laid down on the other siile,ioiiA
general terms as it is urged, instead of p^
moting public justice, would fsnbrert it, mJ
screen all villainies that could beruotrifeib
carry a cause. I take the distinrtiou to be, tU
where an attorney comes to the knowlfdutrf*
thing that is * malum in se,' against the «!&•
nion rules of morality and honesty, thou{k
from his client, and necessary to procure fac*
cess in the cause, yet it is no hreach oftruta
him to disclose it, as it can't be presu^ *
honest man would engage in a trust dut^
law prevented him from discharging that oo™
duty all are bound to, nor can private obluiQ"
cancel the justice owing by us to the ^^'^
But the trast repose<l in this attorney* as, ti
cairy on a prosecution of murder. Themtf*
disclosed by this lord to him was foreign ccn-
cerning the title to an estate; then, buw cat
the revealing of that be a breach of trust, vbd ;
not within the trust he was employed lO- |
The prosecution was properly at the kiu;;!
suit, and not at the lord Anglesea 's ; this tyfi'
ment was not then even in coiiteraplati^. *
could be foreseen that the title to the estili
would ever come in question; so, what M
Anglesea dechiretl to him conriTning the lidci
is no more within the bounds of the trust re
posed, than if any other person had decbroit
to him, for whom he never uas employed.
Rut to go a little farther, suppose* 1* cmpltf
an aUorney to recover Hlack:icre forme,tw'
bring an ejectment for it ; while he is thai c**
ployed, I come and discover to him that 1 hi*
forifcd a deed which relates to WhiteacreisBf
possession, and which is the riglit of anolbtf
^
and Richard Earl qfAnglaea,
A. D. 1745.
[1234
might not the attorney hereafter dia-
tliat forp^ry, to enable the other to re-
^Vbiteacre trum me? For he never was
>yed or entruited as an attorney by me
kt case. 80, in the present oase, the at-
f «was never employed in any cause where
tie of the estate was or could come in
lOD ; so not at all within the reason of
leccssary privilege given by law to the
y CO hinder bis attorney from disclosing
f the secrets communicated to him, ne-
*y for, and relative to the carrying on of
A use be has engaged hioMelf in to prose-
The thing therefore that varies this case
the rule of privilege laid down on the
side is, that this attorney was ni^ver
irned in any suit of my lord's relative to
itle of the estate, and to which we' now
Mce him ; and there can be no such privi-
but where there is such suit and retainer
liat individual purpose, and cannot extend
inoealraent of secrets disclosed under the
dcnce of ordinary friendships or discourses.
id lastly, as it is a discovery to the agent to
ive the death of an innocent man, that
I u no protection whatsoever can be given
iapeose with that moral engagement he
nnder to the discovery of it ; if this un-
nate gentleman had come to the discovery,
the lord Anglesea and his attorney had
«d into a conspiracy to brilie witnesses,
I the Court stand by and say. That this
ess should not be examined? How can he
then, in a civil case, wherein he never was
erned, have that protection ? Will any
leman deny, that this attorney could have
> and given in an examination concerning
prosecntion •* He certainly could ; for no
can have a protection against thekin^.
if lord Anglesea was so idle, or if Provi-
« has so ordered it, that he should be so
•ry, or so wanton, as to make a discovery
liis, and of the plaintiff's title to the estate,
•I no privilege against the discovery of it.*
In the •« Trial at Bar," &c. the following
eh of Mr. Prime (Serjeant Malone is in-
nI m this place :
r. Prime Serjeant Malone, Mr. Giffard
owledged that be was concerned as at-
ey for my lord Anglesea from 1723, to
; what I therefore humbly contend for
liat he cannot legally reveal any secret
nnnicated to him by the defendant during
period of time that be wai his lordship's
ley.
m mutual confidence between client and
ley require the preservation of secrecy.
d as the client cannot be supposed to be
lad to distinguish what is, or is not neces-
to his cause, if he should be mistaken,
■IriMt his attorney with what the attorney
d be of opinion was unnecessary, yet
f Us attorney ought not to reveal it.
dints are not versed in law affairs, they
ba inlbnBad by their attorney, for which
■0 thay nait lell them their whole case,
fL. XVII.
SoikUor General^ (Warden Flood, esq.) for
the defendantf 1 humbly hope your lordship
will not admit this person to be examined in
thia cause. If the question were only to his
•f^m
and this necessity creates a confidence betweft^
them.
In the lord Hay and Seal's case, it is express •
1^ laid down for law, that if a person entruais
his attorney with a secret, whetuer it reUtes to
tile cause be is actually employed in, or ano-
ther, the attorney shall not reveal it, because
it is the same thing whether he is attorney in
one suit or several, there is the same trust aini
confidence reposed in him, and there seems to
be no difference whether the conversation re-
lates to the principal cause in which tHe at-
tornej^ is concerned, or to a collateral action,
in which he is not ; it is in either case ground-
ed on the confidence that arises from the at-
torney's being employed, and therefore ought
not to be disclosed.
Suppose a man indicted for mnnler consults
his attorney or counsel, can any one say (though
that crime concerns the public justice as much
as any) that the attorney or couujiel, so consulf-
ed, ought to reveal the secrets of his employer ?
Giffard owns he was attorney in several suits
for the defendant ; what though the colloquium
he is called to disclose, was not relative to
the specific suit he was attorney in, yet 1 hope
be shall not reveal it ; because, my lord's re-
taining him to be his attorney imported in its
own nature a trust and confidence, it was a
reliance on this maxim of the law that drew
lord Anglesea in to trust his attorney with his
secrets.
One of the causes mentioned by Giffard was
between lord Haversham and lord Anglesea.
With ^^reat submission the Court cannot, with-
out gomg into the nature and circumstances of
that cause, know how far the secret, now to be
disclosed, was, or was not necessary to mj
lord's defence in that suit; and therefore I
humbly submit whether it ought to be disclosed.
flop. ^6, of *« The Trial at Bar," See. this
Speech is given thus :
Mr. Soiicitor General of counsel .for the de-
fendant. The constitution of law that mide it
necessary to emiiloy attornies, enjoin^ them to
be faithful to their clients, and armed them
with several privileges, not for their own sakes
but their clients; so that they ate the pri-
vileges of the client, and not of tho attorney ;
the attorney therefore cannot give up his
client's privilege, and reveal his secrets. And,
as there scarce ever was an instance of an at-
torney's being so wicked, 1 cannot cite many
authorities to this point ; but I bunibly con-
ceive, and there is the less need of it, because
the nature of the thing does not require it, an
attorney by his pro^iessiou being obliged to ob-
serve secrecy.
The case of lord Say and Seal mentions the
privilege of refusing to be examined, as the
privilege of the client, and not of the attorney.
And if au attorney at any time, bting out of
4K
1235]
17 GEORGE 11. Trial in Ejectment bettoeen J. AfmeJey^ esq. [1296
credit, surely he can deterre none ; for he ap-
peare under the circumstances of a person who
was employed from the year 1728, by this no-
ble person as his attorney : a man willin^y be-
traying those secrets, which, in point of duty
and common honesty, he oup:ht to keep. Be-
sides, the secrets he pretends to disclose are
such as it was not necessary for my lord to
communicate to him, and such as no man in
bis wits could disclose to any person, under
what obligation soever of secrecy, without an
unavoidable necessity, which does in no sort ap-
Eear to be the case here ; and this makes what
e says the less credible, and him the less Gt to
be believed asto his competency. The case
of the lord Say and S^, which has been cited,
is a full authority that the secrecy indulged to
to this evidence, that u Mr. Gifiard appwcd,
from what he said oo the table, to have btea
employed by my lord as bis attorney, he oogbt
not, by law, to be permitted to ihsclosa soy
thing that was uttered to faim by my lord oodcr
the trust and conGdence reposed in him ss u
attorney. There have beeo two answers giyca
to this objection : First, That the not disclniBf
the secrets of the client is a privilege given 1^
law to the attorney, and in his favour only, bm
therefore he is at liberty, if he thinks fit, it
wave it. In the next place, the ^ntlemcn say,
that the declarations touchioff Mr. Anncsle^'f
right, were made at a time when my lord w
no cause depending, and that whatever is dii-
cUsed by the client to his attorney, when tbot
is no cause depending in which the attoraej ii
sakes, but that of their clients. That it is the
privilege, not of the attorney, but of the client $ <
and of consequence cannot be waved without
bis consent. It is true, this privilege will not
hold in a criminal case, but is superseded,
when it is incompatible with the peace and
welfare of the public ; but ours is a pnvate case,
and falls not within this rule.
Mr. Harward mentions the case of Staples
and Suiples, wherein a settlement that was con-
cealed, but not suppressed, was wanted to
be known by Mr. Matthews ; when the lord
chancellor directed it so, that there was a
meeting, by consent of all parties, between the
attornies on both sides, and a copy taken and
signed.
Mr. Da/y, of counsel for the defendant, sup-
poses, that if he was concerned for a man
guilty of high-treason, the Court could not
oblige him to disclose the secrets committed to
hinwby that man.
Mr. Smith, for the defendant. If I rightly
apprehend the nature of Mr. Giflfanl's evidence
offered by the gentlemen on the other side, it
relates to twodiHereiit kinds of declarations al-
ledged to have been made to him by my lord
An^lesea in conversation durincr two different
fieriods of time ; first, the declarations of my
lord concerning the riirhtof Mr. AuncsleVt (the
lessor of the plaintiff) and these are alleged
to have been made at several times in the year
1741, antecedent to the prosecution of Mr. An-
nesley ; and in the next place, my lord's de-
clarations that he would give ten thousand
pounds to have Mr. Annesley haneed ; and
these are said to have been made during the
runtinuance of the prosecution. We objected
humour with his client, might give up his
client's privilege, and discover his secrets, it
would be attended with very dangerous conse-
quences. 1 know, that in the cause, Stephens
a<^ainst Stephens, one Mr. Matthews an at-
torney was admitted to give evidence, but it
was by the consent of all parties.
If, after all we have said, Mr. Giffard is to
give his evidence, I am persuaded he must
appear in such a light, as to rtcfire but little
• •r «• carwlit.
this sort of people by the law, is not for their employed, is not within the reason of thegawrtl
" '' ' ** ' r«. . .. . .. nile; because in such case be may be said to
be intrusted as a companiou or acquaintanoe,
but cannot be said to be trusted as an attonc}- ;
and therefore, they say, Mr. GiflTard ought to
be examined, at least to theae declaratiosi.
Before I speak to these poinU, 1 shall beg lesre
to observe in general, tliat breach of trust and
confidence is a thing no ways to be favuurfld
in any man whatsoever, whether be is or is ait
an attorney ; for mutual trust and confidcooe
is one of the strongest cements of hunsaa w-
ciety, and without which it could not subsist;
and therefore 1 apprehend, that the Court will
always go as far in every case, as by law tbfj
can, to prevent a person Tom being guilty of «
base an action as violation of trust and coafi-
dence, although he should be ever so willing to
do it.
As to the first point, whether Mr. Giffard
ought to be at liberty to wave his pri% ilej^e ; 1
think the case of my lonl Say and Seal, in the
liook calletl Macclesfield's Cases, fol. 41, men-
tioned by Mr. Prime Serjeant, seems to be aii
express authority that he ought not. In thii
case, the Court in giving their opinion, liv it
down as a general rule, *' That an attorney 'f
privilege is the privilege of his client ; and tliai
an attorney, though he would, yet shall not bt
allowed to discover the secrets uf his client"
The different interests which the attorney sad
the client have in this privilege, shew tbisrule
to be highly agreeable to reason. As to the
attorney, this privilege is an exemption from the
general rule, which obliffcs every one to testifv
his knowledge in any affair where he is callel
upon as a witness, hy this exemption be ii
freed from the <lisagreeable necessity of reveal-
ing what was disclosed to him by his client
under the seal of confidence ; this is a privi-
lege which every honest attorney will set the
highest value upon, and will endeavour to pre-
serve ; and whenever any attorney desires to
be discharged from that exemption, ami to be at
liberty to wave his privilege, lie does, in cfTtct,
desire to be at liberty to be iruilty uf one of tbe
basest of actions, breach of trust and cooi*
dence ; which as it is a thing highly to be dt«-
oountenanced in any case, more especially ia
tb«t«f auattorae^; lie ought not to be p«^
and Richard Earl of Anglesea.
A. D, 17*3.
ntilted to Jo it, lei him hare ever so sttaag an
(adinUioD to it. As to the ctieni, Ihe inKretl
which he baa In this prlTJIvge, ia very obiiouB.
Nd man can conduct any of hii aflaira which
relate In mnlters of law, without employing and
caoaulliiii; wilh an atloroey; ci^u il'lie is CS'
p«ble of iloing it in jioint of akill, Ihe taw will
IMl let liim ; anJ if he does oot fully and can-
diiity disclose every thing that is in his iniod,
which he aiipreheDds may be in ibe least rela-
tive to the *trBir he eonsullB bin attorney npon,
it will be impoMible for Ibe atlcirney properly
In serve him : therefore, to permit an allorney,
whenever lie Ihiuka (il, to betray that eooh-
dance which Iheehent is under tucli an al>to-
hltc necessity of reposini; ia him, would be of
the moat dangerous consequence, not only to
•be |iarticular client concerned, but la every
Other Mxn »ho is or may \te a client. Ttie
gwitletnea on the other side have atiempled In
eoofioe and circnrngcribe this prlrilege, and to
make it extend only lo mailers disclosed by the
client relaliie to some suit, then depending, in
wbicb the ntlorney is conceriii^. Out I apgire-
Imid thin would be makintr ihe rule a great deal
|aa narrow ; for, if the principles an which the
nle ia fbuoded, are considered, the (rue meati-
isg of it must be, that the altome v shall nol be
ptnnitled to reveal any Ibing that his client
dinloae* Lo him under a general confidence as
lib atlorney ; so that il cannot be malerial
whMber a suit was (hen actually depending or
not; hut the malerial point to beconsidered is,
wbelber the client did not consider him aa hii
Mtornev, when be so disclosed his mind to
kim f In the present cnse, thai my lord Angle-
Ma, at the lime these declarations Inucbiou
Mr> Annesley's right are said to liave been
made, did consider Mr. CiiiTard as bis adorney,
cannot lie doubted. Mr.tliirsrdEnys, That my
lord, at neveral limes bcl'ure, and particularly
in the year ITll, had employed him in several
iolts; (hat he, after tlio«e discourse!, eiu-
ploynl him again, and in the month of May
1749 discbargeil him. So ihal the general
eoofideiice tny lord reposed in him as hit at-
lorney, must be presumed actually to subsist
firoDD Ihe time he Rrst retained Mr. Giffard, till
the lime he discharged him ; and whatever my
lord ssid to bim during that space of time,
tDUcbing his aflairs, was plainly said to bim
mder confidence as his attorney ; my turd had
Miployed him as an altorney belure, and
fhlnly intended again to employ liim as hi* at-
lorney allFnvards ; and because there was an
Interval, during ihat space of time, in which
ny Ion) wcs Bi peace, ami happened to have
BO anils on his bands, to say Ibal his al-
torney shall therefore lie at liberty lo disclose
wbat was in Ihat interval revealed to bim,
wnulil he euually productive of all the ill con-
- Ihf - ■'
iicli
relative In a suit actually depending ; the con-
fidenoe reposed in thi- attorney, is the same in
IfaeoDCCSM asiu the other, and his violatinn
t c<iD&d«OCe c<iually prgudicitl berth t«
r«i^
the client and the public. Il has been ob.
jecied, Ibat what has l>een cited out of the case
of lord Say and Sent, is not the point adjudged
in the case: but alihouifh Ibe Court do there
Jecide the queslion before tliem upon another
point, yet the general rule which lliey lay
down (as I hare mentioned it) stands udmitled.
The case of Mr. JtUilhews, Ibe attorney, was
mentioned on the other aide: if I am rightly
infurmed ol' thai caae, Mr. Malihews had, in
Ibe presence, and at the desire of his elieut, at-
tested and subscribed a deed as a witness. Tb<
(question asked of bim, was touching the eveuu-
tioo of that deed, and he was orderol to answer
but that case is entirely dilTerent from tha
present ; whenever a man attests Iheexecutiun
of a deetl as a witness, he does thereby enga^a
to prove the execution of it, whenever be la
J udicially called upon so to do : and his client's
desiring him lo atlest the deed, is a couaeut
that ihe atlorney shull enter into that en|[age-
ment ; therefore tlint case is no way relstiva
to the present qnesiion. This ia ell I shall
trouble llie Court with as lo the supposed de<
claralions of my lord, antecedent lo the pro*
secution of Air. Annesley. As to the dectara-
lions supposed in have Men made by my lord
during the prosecution ; besides Ihe other
reasons I have helbre meulioned, as to the con-
fidence my lord repoaed in bim as an attor*
ney, I have another objection against the exs-
Diiniog Mr. Giflsrd in this point. The gentle-
men last ni«hl produced Mr. GltTard, and pro-
posed to examine hi[n, to shew that my lord
Angleiea was concerned in,- and assisted to
tarry on Ihis prosecution ; which evidence waa
objected lo on our side, and upon debate ih*
Court seemed lo be of opinion, tliat they ought
not to be let in lo give Ihal evidence ; and I
apprthend the point was this morning given up
by Ihe gemlemrn on (he other side: bul Iha
examination now proposed, is an alteuipl to do
Ihe same thing in another sliajie ; Iliey wera
nut admilled lo give evidence directly that my
lord was concerned In, or carried on the prnae-
culion; bul if they are admilleil lo prove bia
declarations touching his intention in carrylnff
il on, it is plainly doing the same thing in other
words, and ivould be lo admit ihem to do that
IhiN morning which was refused Inst night.
The gentlemen have, iu proposing their evi-
deuce un this occasion, used many harsh ex-
pressions concerning (lie defendant ; but 1 ap-
prelicnd lliry are a liiite too early ; harsh re-
flections should not be used unlil the facts no
which they are founded are proved and given
in evidence ; whether ihat evidence shall be
given or not, is nnw the point under the con-
sideration of the Cuurt; and unlil that tnatter
is decided, I make i/o duuhl bul ihal the gen-
tlemen of the jury will not permit the i^uppo-
silion offsets lo have any influence upon them,
before the liicts thetnielves shall be proved.
Upon the whole, ss wbslever the Court ahull
do in this ease will be a precedent, ami, li>r the
reasons 1 bave mentioned, a precedent of verr
I239J
17 GEORGE 11. Trid In Ejechhent between J. AntO^Uyt esq. [1810
^very othrr client and his attoraey, 1 hope the
Court will he of opinion, that Mr. Giffard
clught not to be examined to any of the points
proposed.*
X. C. Baron. The ohjections to Mr. Gif-
fard's being admiltod to give the evidence pro-
J^osed by the plaiutiflf's counsel, have been
argued with great strens^th ; and undoubtedly
the public is interested in the event of this
question, so far as it may affect the necessary
confidence between the client and his attorney
or agent, which will make me cautious of
fixing boundaries to that trust. The proper
way will be to determine this and every like
case upon their own circumstances. W hat has
been urged to take the present case out of the
general rule, was, that the conversation to
which they would examine Mr. Giffard, was
neither iu any cause wherein he was con-
<:emcd for the defendant, or relative to any iu
Tvhich he was consulted, or intended to be em-
ployed by the defendant,. If so, the question
will be, whether an attorney shall be permitteil
to disclose the cTcnei-al converoation he had
with his client, without relation to him as his
attorney ? Now, admitting the policy of the
law in protecting secrets disclosed by the client
to his attorney, to be, as has been said, in
favour of the client, and principally for his
service, and that the attorney is ui loco of the
client, and therefore his tru<:tee, does it follow
from thence, that every thing said by a client
to his attorney, falls under the* same reason ? I
own, I think not ; because there is not the
same necessity upon the client to trust him in
one ca*<e as in tlie other ; and of this the Court
may jud^e, from the particulars of tlie conver-
6ation. Nor do I see any Impropriety ii» sup-
positig the same person to be trusted in one
case as an attorney or agent, and in another as
a common acquaintance. In thi> first instance,
the Court will not permit him, though willing,
to discover what came to his knowledge as an
attoiui.v. because it would be in breach of that
trust which the law supposes to be necessary
Lotwccn him and his employer: hut where the
client talks to him at large as a friend, and not
in the way of his profession, I think the Court
18 not unrfer the same obligatiuiis to guard such
secrets, though u\ the breast of analtoinev-
If I employ an attornry, and entrust to him
secrets relative to the suit, that trust is not to
he violated ; but when I depart from tl^at siib-
* In the " Trial at Bar," &c. aiior this
Speech of 3Ir. Smith is i;ivcn the follouiuc^ of
Mr. lA'hunte:
Mr. Lehuufe,' of counsel for the d^fondant.
If a bill was filed against lord Anglesea, to en-
quire into the manner of tho prosecution at;fainst
Sir. Anneslcy, charging it to he ni:iiiei'>us,
would his lordship be obliged to answer s»ieh
a charge? No; and therefore I hope that Gif-
fard, without his lordship*s consent, shall not
disclose any matter relative to that prosecution,
which his employer could uot be obliged to
diBclose biau^if.
\
ject wherein f employed him, be b no more
than another man, es|M!ciaHy when tbectne I
did employ him in is over ; because he limt
to be supposed, as an attorney, to be a gmenl
confident. When the C9iise is ended, he ii
then only to be considereil with revpect to hit
former employer, as one man to another ; ini
then the breach of trust does not fall withii
the jurisdiction of this court ; for the Coat
can't determine what is honoor but wM
is law, and all the cases fall under this ^
tinction. The case cited of Cutts and Pickv*
ing, 1 Vent. 197, restrains it to whit cum
to his knowledge as attorney ; and so I fbiak
is the case of lord Say and oeal ; the evidnee
to which he was produced being to thedeftc-
tive execution of a deed, to nnake a tenant to
the Prtecipe for suffering a recovery, in which
the witness had been emptoyed as attonNj,
which was the secret of his client's caose.
The Lord Chief Baron was iroing to nwa*
tion the case of one Hamilton, where he appic*
bended the attorney had been examined ii
Chancery ; but being informed he was noi, ha
lordship proceeded :
What I found myself upon is, the nature of
the testimony proposed, which appears to aw
to have been casual conversation between ikc
witness and the earl of Anglesea, which wa
not necessary to have been communicated to
Giffard by his lordship. And as to the privito
trusts between man and man, we cannot inter-
pose. Besides, as this was in part a witied
secret, it ougtit not to have been concealed;
though, if earlier disclosed, it might havebeca
more for the credit of th'S witness. I there-
fore think Mr. Giffard may l»c examined to the
defendant's declarations concerning the plaia-
tiff's person and title.
Mr. Baron il/<»w/i^cnej|. The prod igions coa-
sequenre of the cause now depen(hng before
us, haih, very properly, inilucefl the geaile-
men who are of counsel on l>oih sides, to inMl
upon, and argue at large, every fioint arising
in the cause, which could possibly bear the
least debate. The same reason hath iodoced
the Court to hear gladly, with the utmost pa-
tience and attention, every thing which coaM
possildy be ofl'ered on either bide ; aod, I
think, nothing hath been omitted, which coaU
have been materially ofiered upou the preseot
quc^tiun.
For my own part, notwithstanding all tW
ohjrciions which have been raised against die
evidence now under consideration by the de-
fendant's counsel, I still continue of the saoi
opinion, uhich I entertained when tbeevideMt
u ns first offered and objecteil to ; which i^
ihat the question now before us will receive a
vf ry easy, clear, and short determination, ui
thni in favour of the evidence proposed. I !*•
rsiihnr say so, because I think, that upon the
very principles laid down, and upon tbeairth^
riiy of the very cases cite<J by ine defmdaart
counsel, it is to demonstration dear cfaat IN
evvsieuce tiow ofiered ought to be
rs4i]
and Richard Earl ofAngksea.
A. D. 1743.
[I£4«
Mr. Recorder bath very properly mentioned
Ihe tminUation upon which it hath been held,
■nd is certainly undoubted law, that attnmies
MijErht to keep in? iolably the secrets of their
alientu, viz. That an increase of le^al business,
lad the inability of parties to transact that busi-
■CS8 themselves, made it necessary for them to
employ (and as the law properly expresses it,
Hmere in locoiuo) other persons who mi^ht
Irsosact that business for them. That this
secessity intro«luced with it the necessity of
what the law hath very justly established, an
ittTiolable secrecy to be observed by attorn ies,
k order to render it safe for clients to com-
nunicate to their attornies all proper instruc-
lion for the carryinji^ on those causes which
ihey found themselves under a neccRsity of in-
viistinff to their care. And if this original
|irinci|)ie be kept constantly in view, I think
t caottot be difficolt to determine either the
present question, or any other which may
irise upon tliis head : for upon this principle,
wbatever cither is, or by the party concerned
Baa naturally be supposed, necessary to be
communicated to the attoniey, in order to the
^nyiofT on any suit or prosecution, in
vbich he is retained, that the attorney shall
bviolably keep secret.
On the other hand, whatever is not, nor can
possibly by anv man living he supposed to be,
■eeessary for that purpose, that the attorney is
It libert}', and in many cases, as particularly,
t Uiiok, in the present case, the attorney ought
to disclose.
The declarations of the defendant to his
ittarney, which are now oflored to be proved, I
iball not mention at lart^e, hut slinll only take
lotice of one, which was, that (speakings of Mr.
(knnesley, the now lessor of the pluiniilf ) he
ileclare<l, he did not care if it cost him 10,000/.
if he could sfct him hanged. Dors any man
liviofsf, who hears these words pronounciMl,
iKsitate one moment as to the meaniiii^ and im-
port of them ? They speak too phi inly to he
misunderstood, or doubte<l of. For God's
nke then let us consider, what will be the
BODsequence of the doctrine now laid down,
lod oo earnestly contended for, that such a de-
claration made by any person to hip attorney,
Milirbt not by that attorney to be proved P A
■mn (without any natural call to it) promotes a
prooecotion ai^ainst another for a capital
stlence— he is desirous and determined, at all
events, to get him h:mged — ^he retains an at-
torney to carry on the prosecution, and makes
nch a declaration to him as 1 have before men-
tiooed, (the meaning and intention of wlrich, it'
Iho attorney hath common understandins^
ibout him, it is impossible he should mistake)
—he happens to be too honest a man to
iDgaipe in snch an affair — he declines the pro-
iBcntHm-x-but he must never discover this de-
sinration, beoause he was retained as attorney.
rbb prosecofor applies in the same manner to
I oeoond, a third, and so on, who still refuse,
mt ore still to keep this inviohibly secret : at
aft, be fiodi an aitomey wicked enough to
carry this iniqnitoas scheme into execution—
and after all, none of these persons are to be
admitted to prove this, in order either to bring
the guilty party to ctmdign punishment, or to
prevent the evil conse«|uence8 of his crime with
regard to civil property. Is this law ? Is this
reason ? I think it is absolutely contrary to
both.
As the principles upon which the defendant's
counsel have arguetl, so 1 think likewise the
cases which they have cited make directly
against them,and are express authorities in
favour of the evidence now offered. In the
cose of Cutts and Pickering, in 1 Vent, the
Court were of opinion, that the solicitor might
lie sworn to the discoveries made to him by his
client before his retainer. I'lie |fieaniog of
which 1 take to be, that such discovery not
beinsT made in consequence of the necessary
cooUdence between client and attorney, was
therefore not within the rule of secrecy : and
if the same reason will hold in the present, or
any other given case, even after a retainer, the
objection must equally fail. Now I think the
same reason does hold in the present case, be •
cause the declaration now offered to be proved
does not appear, nor couM possibly by the de-
fendant l>e supposeil, to be a necessary instruc-
tron, or communigitiou between him and his
attorney, in order to the better carrying on
either that prosecution, or any other legal busi-
ness in which he had retained that attorney.
8o that this dec'araticin, after the retainer,
stands entirely, in my np|)rchension, on the
same footing as if it had licen made before.
For to say that the conlidence^bet ween client
and attorney (to which iiiviolabje secrecy is to
be annexed) is to he taken in the latitude laid
down hy the deiendant's counsel, is, in my ap-
)ireliensit»n, (o say that nhich hath no founda-
tion in law, nor the least colour in point of rea-
son.
The other ra«e which was cited by the de-
fendint's counsel, that of lord 8ay and Seal, is,
1 think, still infinitely stronger against them ;
and every reason which the Court in that case
proceeded upon concludes directly in favour of
the evidence which is the subject of the present
debate.
In that case the Court were of opinion (and I
think most rightly), that the privilege oi' an
attorney is the privilege of hi& client ; (and so
I havealways understood the law to be) but,
notwithstanding that, the Court admitted the
very attorney, who had been intrusted in suffer-
ing the common recovery, to prove that tlie
deed to lead the uses of that very recovery was
antedated. And what were the reasons upon
which the Court proceeded ? The first men-
tioned in the book is, that ** the time of exe-
cuting the dtied could not be called the secret of
his client." Now, 1 think in this case, the de-
claration offered to be proved, can still iniinitqW
less be considered as the secret of the cliefSt.
The next thing mentioned in the report of that
case now produced, is, that ** it was a tliiu^; he
might come \o \V^ WsvVu^^ ^\ ^^i^^^^ >^
I
1243] 17 GEORGE IL Trialin Ejecimeni between J. Annedey^esq. [1211
c1i«*nt'8 arqaainting bim ;" and that, I think,
vill hoUl equally strong in the pregent case.
rj'jl.iti! mt^ht nave heard trum others, that
Itiiil Aiiult-sea ha<) made such a declaration ; or
lord AituI* M*'« mi(;ht binnKelf equally hate made
it Ut GiiTanl, alilioutjrh he had not retained him
as an atntrncy, it uot l»ein|(, as I hare before
mentioned, a necessary inKtruttion, nor what
could iNiSHbly by the defendant be thou|rht so,
for the belter carrying on the business in'which
be f^ati retained ; and consequently, not pro-
ceeding from that coniidence which is necessary
beli^eeu c!ieot and attorney, and to which,
only because, and so far as it is necessary, the
Inivileife of secrecy hath been anni'zed. The
ast thing mentioned in the book is that the fact
offered to l)e proved, '* was of that nature,"
that an attorney concerned, or any body else,
night inform tfie Court of it. Now I cannot
help thinking from these words, that one in-
gredient in the determination of the Court, was,
that the proof offered in that case was the proof
of a criminal fact : if it were, that reason will
hold infinitely stronger in the present case.
The declaration now offered to be proved, is of
that nature, and so highly criminal, that, in my
opinion, mankind is interested in the discovery ;
ail'! whoever it was made lo, attorney or not
B(t(»rnev, lies under an obligation to society in
general, prior and superior to any obligation
he can lie under to a particular indiridual, to
make it known.
1 speak this without prejudice : €rod knows
whether such declarations, as have been men-
tioned, were, or were not, made by the now
defendant; but, when we are debating the pro-
Eritrty of the evidence, we are, during the de-
ate (and for argument's sake only) to suppose
it true : if they shall afterwards appear in proof,
1 think they will be exceedingly material for
the consideration of the jury ; and do therefore
most heartily concur in the opinion given by
my lord chief baron, that the evidence now of-
fered ought to be admitted.
Mr. Baron Dauton, If there had been no
objection made on the part of the defendant that
the attorney had been employed by him, the
plaintiff would have had a right primd facie for
liis being admitted a witness ; therefore to de-
prive the plaintiff of this right, it must be
shewn, that the particulars offered here to be
given in evidence came to the knowledge of
Giffard merely as attorney for the defendant.
Nothing that came properly to the knowledge
of the attorney in defence of his client's cause
ought to be revealed. 1 will suppose an un-
knowing man to have twenty deeds by him,
and he delivers them all to his attorney to see
which were relative to the suit ; he looks them
over, and finds not half of them to be relative
thereto ; I apprehend the attorney is not com-
pellable to disclose the contents of any one of
Ijiose deeds ; neither do I think it necessary
that there should be a suit actually depending.
If I have an apprehension that a man intends a
«uit against roe, and I empk>y an attorney to
^nw M itole of my caia fifon ny paiftni
though there is no came depending, that I
apprehend it would be a breaco of frost to ^
dose the contents of those papers, and that the
attorney ought not to be admitted to ditdoK
what haa been so intrusted to him : and I tbiak,
the Court most, in this case, he satis6ed, fint,
that what came to this man's knowledge mi
not necessary to his client^s affairs ; and in Ik
next place, that the client coald aoi tbiak it
necessary. The cause to be cmrried on, wm i
prosecution for the killing of a man ; what mi
necessary for the carrying oo that proscculii^
I think the attorney ought not to disdoK. I
think farther, that any tbiofg that the dim
thought necessary, ought likewise not to kt
disclosed. The motive for carrying as Ihi
prosecution against the plaintiff is sm to be,
because be has a right to tlie estate the ddb-
daot was in possession of. Can any man tkisk
that this was necessary to tell the attorney, m
that the defendant could haye thought it wf
What was necessary, or what a man nM
have thought necessary, ooght not to be «•
dosed. But if the defendant in this case, hH
goue any thing further, he has trusted bin, sil
as an attorney, but as an acqnaintanee. Hi
attorney is to keep secret what cornea to bia ■
an attorney ; but this conversation 1 don't Ibiik
was necessary for carying on the cause. B^
sides, the prosecution was at the sait of the kiB|^
so that he could not be looked upon as attsrscj
for lord Anglesea. J agree therefore with wj
lord chief baron and my brother Monnlnrj,
that the evidence is proper to be given.
I think it proper at this time to mention, thtt
I have considered the point of evidence iba
was proposed yesterday, and if it was now a
be determined, I should be of opinion to tllof
the evidence ; and if the counsel for (be if-
fendant should so please, they may take a \A
of exceptions.*
Mr. John Giffard sworn.
Q. Do you know the present earl of Aii;fe>
sea ? — Giffard, Yes, Sir.
Pray, Sir, do you know the present phintit
Mr. Annesley ?— Yes, Sir.
Pray had yon at any time any convenatioB,
and when, with the present lortf AngleseaciS'
corning the plaintiff, or his title to the landiii
this ejectment, or any other lands?— 'It ffv
sometime between the 7lh of December ]74li
and May 1742, my lord Anglesea had an «■
peal from this kingdom to the House of Loitk
* As to the operation of professional or nbv
coniidence in permitting or requiring a witsi*
to withhold his testimony, see Pme's U^
of Evidence, chap. 3, § 4, and the cases ibfH
cited. See, also, m this Collection, the S(^1^
vol. 0, p. 611 ; and what passed upon tbeci*'
minationsof BIr. Hawkins and lord BarriB|l4
in the Trial of the Duchess of Kingston, i.»
1776. This topic was noticed in tbe W
Case of sir David Dairy mple of HaikiJ^
Grant, M'Laurin's DedsiooSi 34. ta^ 1^'
I Bladurt, Comment. 370.
i^tn 135 pvtKuar am* *'ixn
cu: )luvb i:«I. ■bra be \nii
■e or i;:«r u^c dewnaiiuilva
? — I tifii**f 11 »a> h>Hh W
the appeal w»s il(irrn>iii«J ihr '
•ihI bie cDoiuiuni iu itiai ren>' ,
17*:. (
'•tatWRdhrarnoluiioniliett.'
ot'3la_r.Mr. AaattWy haildwl
• ; il vmi on Suurday, k» «|i
(CUnent wid cortmrr* inqunt .
r S(l of BIuv, nij[ lonl n>nl Kir
me to go IP Maine*, and In
f affair, ami to colJect tlie avl-
■y ou the proieculiuD, aiM W
iniiB of BIr. Garden ami "
,ne Mr. Ji
■- \a I JV'"»
anil in lorne imnll limv aflei
■layi) lold me, Thai 1I117 liail
ler, and ailviged liim noi la bn
wiih me, for tbat il wm iinl
I appear in Itie proiecutioii, fur
tSt liim in iha caiiie that
«n him and the plainliir;
are il'il coil him 10,001)/. il' Im
laintifT hanf^ed ; fur Iben Im
1 bii title and nUU.
^'ikt«v<vaai<rM>u MAt '■' h^"i Vinrf IWi/it^liQn
ha>.tit). W« MMM aiWc Um tMftlwf U41VI1
t.>i>i>^mc4l«%<M'4l,ir. rtwMkiMMi tw Wfta iml,
I Mmr Im «m«m l«*akt HMriVMHMi i |wihhi'»
mn uf Ni.v titnlVi.
Had Hiy l>iTi> '
liiiii; 11* )>«<
|Hi«r, II f Ilia ru til
|dviMK*Air •»_
all
'III
I.
yUinfmrn^-
■alrPHin mhI til- M. II f 4mmM <
l)i)}wkM*«riH'*f»<*«'«MM- t^;^
lutl'«nllM«MMMMMlwf'-4lMtNr,Mt •»
wiih iMwiM* mmmmpAmm
ThwiM _
1251]
17 GEORGE 11. Trial m Ejeclment beltvfen J. AamsUy, c
I
What sum was girea for their stiendauce?
.^libuul liult'-a-crukvn a. day Tur llieir atlecid-
aoce. Iflliero was any dirty work, I knew
oolhiag of it.
Are you paid your bill or coats P — Not all
or it.
How much itoes it came to ? — The prosecii-
liun (lost 800'. : but the total remaining due to
me is .130/.
Was there any body present, wlien you hnd
Ihii conTcrsatiou wit>i my lord f— No, 1 be-
lieve not ; fur we used to converse lugellier
■lone frequenlly.
IV as Mr. Jauaever present?— No, never.
Was TliompBon Gregory present wlieu he
vent and brought you to my lord ? — He came
Willi me.
Did he remain in the room? — I beliere be
diJ.alllhatniglil.
Was this the 9d of May ?— Yes.
Had you thai day any discourse about the
•um ot money that my lunl would spend ? —
Mu, not thai day.
Was it by your advice and direclious that
tliut letter was sent lo yuu by Ibe church-
warden ot'StainesF — No, it waE by Gardeu's
tnd Goriion's advice.
Were you privy lo il? — Yes, I was. And
this Ictler was advised in order that ihe dc-
feudant might not appear in the prosecution.
Did not you know this was to give a colour?
—I did.
Did you think this was for a good porpose?
— ^Mr. Garden, Gordon, Jans, and lord Anglo-
sea had a consultation, and il wa£ thought
|iro|)«r that I Bkould have anoilier person to my
assislauce, because ihey would not appear, and
■ny insii'dciions were, to send this onkr to tlie
church-warden and get it signed, that tiiy lord
■hould not appear in it; aud ibe reason was,
that il' my lord should appear in it, they thought
it would lie illeDded willi 111 conaequences.
Did you know at the lime of the trial IhaL
Mr. Aouesley intended to sue Ibr the title and
eslatcot' lortlAnglesca.' — It wat rejioried he
would, that he mleaded it; aud this waa in
order lo prevent it.
Do you know one Mr, Thomas Smith P —
Ve,, Sir.
1 desire 10 know, if Mr. Annesley gels this
■nit, whether yuu will be jmid your bill of
oobIs? — No, Sir, it' he gels it, 1 tbell lo^e every
■hilliDg ol'it.
Where do you lodge? — Atone I*arsons's in
King- street.
Are you acquaioted with Thomas Snilth the
cabinet- maker f — 1 am very well uoiuaialed
with h,m.
Hod you any di«coune wiib hiui about this
evideuce that yuu have given lu-day ? — 1 have
bB<l some discourse with him about it.
Did not vou tell him that you had been ill
naed, and llial that provoked you lo give in this
evidence .'—No, I nevei- did ; I'ur he knew that
I had been ill used. I will tell you what I
liave Mid lo him : That il was a wrung step in
■)>' lordi tot ihi* bill ot' vale of miac nould
1 DDMlU
^aJiiegMI
never have come lo light, had not I bcMtlfinI
lo sue lor my rJKht. That my lunl&M«M|
in Ihe Exchequer against me in Enslaai, If
disclose what business 1 had done for him, wt
that [ wasnbUged in my justificiiioo ta imJ
in a Rcheilule tHis my bill of cosM. I
Did not you look upon my lord AngWi
your real client in the proseculiun of tb«
liff?— He promised lo pay me, but I iU«
look upon him as my immediate etnplm;
tor my lord told me he had directed Hf.M
tu employ roe.
Did you look upon Mr. Jans at this lir
j'our clicDtf — I did look upon him h
Uu not you believe that my lord had
discourses wilh you ashisaltcniey.' — N>,S^
tor I knew 1 was never to be concerned ~
In what lisht then did yon look
discourse i' — T looked U|ion ' - '
Was not Ibe discourse wilh you
and Sth of May, as his attorney or wUcteM
1 looked upon him to he my client.
And iherelore did not he look uponyMri
his solicilor?— I cannot lell what be did.
Did he meet you as his I'rieui), or*ali
— Sir, there was another man wilh dm.
Were not you employed by him ta Mt l|
inqucslheldP— I was. 'l wish you wmiUm
duce any peiwn to attempt to prove Uiu IH
How long have you been a pncti^aHtt>
1 have hod a great many clieatx " "'
of twenty and odd years.
Do not you luiik opon il as a niie ttft
dcncc and honour, lor allornies loketald
giously the secrets of their Ghents?-~l%l
deed.
Do not you think, thai ifa eolicitorana.H
torney discloses these secrets, he i* a
man?— I think he is.
, And hnwcamcyou to discloMlhisfl
I wvuld nut have disclosed tbit, if I -— ^^
l>een obliged to do it; and the itmaM 4
obliged me lo do il, was, my lard's filiaf il
iu ihe Etcbequer to disclose what boiuM
had dune for him; when 1 waa obliged %Hf
iwer the inlerroga lories I am now asked, j
Yuu said my lord Auglesta was t in
flashy man io his discourse ; did not JMI^I
Is not he a man subject lo passion aolMj
and hasly aud rash in bis vipttadtui^
At the timo that he talked lo yoa IJ
giving up these tilings lo Jemmy, wu "
chagrioed, and in a passion? — He «
from being in a passion, and askeJ IBJXf
whether il was proper for him lo do il
Whs uol the reason he ffave this, tJ
iiul value his titles, and should live •
Frunce ? — It was.
Was it n conscientinui scruple, nr Ut Jl
of ease ?— I believe it was both. Tha ~"
of it vias, he wax eitreoicly angry ig
*nSf)Mf^
E««1
bin
mnd Itichard Ear! ofAngleua.
lUM they pull«d away money
A. D. 17«.
[IS5*
IM this uid out or tlie effect of liis.
•I thJKtitne, aroutof>|>Ieen to Charles
f ? — No, 1 bdiere he Rdiil Jt for his
e, for his oiru aJ*iiotn);e ; lor the
lien coming on wiili the preaeat
niaJe bim degirou* to be cosy.
here ioy iutcrcaurte or treaiy set on
iwu biro and Mr. Annesley F — I van-
^Iwre answeral tlist alrewly.
He thia diicnurse hRpptned, about
f March 1741, and teferal ulher
Rou recnllecl wlielber any one was
™'-|ie at all, Sir; we wtre con-
. but I heard Mr. Jans leTeral
pkira lo ieatelhe three kiogdoma.
wer tn the hill iu the Exchequer,
t that declerallDQ that my lord
lyoii ? — Sir, I wonder you would oak
ilion ; it has no relution lo th« bill.
Ml eier tell any (icnnn that my lord
Lt dednraUon 7 — Yea, I bare awora it
London.
: wbom? — Berorethe Exaniiaer.
DU mention it at any other tiiue before
Ecsamined 7 — Yes.
Itom f — Upon hating the copy of this
managers of Mr, Annetley came lo
inw if I know any tlito); of thii mailer.
Butiagers ? — Mr. Kercher, Mr. Pater-
V aerved with a aubpccna ?— I bare
I
and said, ^Vill
ending } m
-Here, Sir.
Ola Ireland, and said
^Vill you (tire at the
a subptcna ? and 1 told
foald not give them tlie tronhle.
n you any tbal yuu would not Iiafe
ideoce here, except you had been
lit?— Why.Sir, ia not that a force?
appliea lu me, anil aays, lie will sub-
^ inuxt not I obey that subjiiEna T
""UBter hear my lord Angleaea aay any
'le stealing of a sdier spoon f — f
ly lord Anglesea aay, that tbii
!• be called him, was transported
■ ail* er apoon.
<a hear that ? — At the lime of
il mote than once ? — Yet,
lime of those
I between the Tlh of
I, ttnd Ihe 14tb of July 174S,
-'•i, did you ever, in any con*
ly lord Anglewa and you,
. that the plaiiitilT waa a
I bare heard him Gay, he
rd. I bare heard him aay,
I brolber'a bastard. I have
, that he got the wencb with
lit btr lay it ajmn his brother,
■ bttkr mIc to maiauiB it than
Did you bear him say that at oHeit as you
heard him speak of the ailver spoon? — That ia
not poaiiible for me lo charge my memory
with. I have beard him say boih ferj oflen.
When be said he gut him transported, he said
he stole the silter spoon.
^Vas any one present when ho said this t —
Yea, I wiil tell you one, who said be was in
the bed with her along with my lord, one
Kolph.
Waa Kolph presenl f—Rolpb was present.
At what placed — I believe in my lord
Anglesea's lodgings.
Where.' — In London ; either there, or at ■
Whom did you hear this from?— I heard
Rolph aav this.
\Vas Rolph one of Ihe coinpatty al tha
la>em ? — He was.
Did be sit down at table with you?— I be-
liere il was ia Ihe morning, at my lord's lodg-
ings in Bury-streel, at the lime uf breakfast
now I recollect m« of it.
What was it ray lord said tlieo?— What da
vou say lo this, says he ? Here is Rolph says,
lie was in the bed at the same time, and knows
Ibe pretender is a ba^lard.
>Vas this when be mentioned the stealing*
the silver spoon? — I bolieve it waa at Ihe
Tlie Evidence cloudfor thi Plaintiff.
Mr, Attorney General, (St. Geoi^e Caul-
field, esq.) opens the defendant'a evidence :
May it please your lordship, and you gentle>
men of the jury ; I am ciiunsd for the de-
fendant, the tail nf Aiifflesea. Yon hare
heard a great deal of evidence carried on for
several days, entirely taken up in the etcamina*
tiin of witnesses on the part of the plaiolifF.
I
• In the " Trial at Bar," 4ic. (p. 59.) it ap-
pears tbal after the examiaaliou of Gilford,
Mr. Rii^kard Buily being produced on the
table in order to ha examined, said.
My lord, I humbly beg leave lo inform your
lordsfaip, before I am sworn, that I baie a
lease here in my hand, which I held from tlie
defendant, and which if the plaintilT &ucceed«,
I may lo» the benefit of; therefore I submit
lo your lordships, whether I ought to give my
evidence in this canse.
The counsel for the defendant objected to
Mr. Baily'a being examineil, because ioteresled
in the ecent ; and Ibe Court being of opinion
thai be ought not In lie examined, where hia
evidence nny prejudice or better his own
interest, he was set aside.
[Here the counsel for the lenor of the plain-
lilf closed their evidence ; but said, that if the
counsel for ihc defendaol should make il any
part of their defence, that the leaaor of tha
plaintiiris the son of Joau Lindy, they lor
the [ilaintiff hoped they ahould be aJmitied to
shew what became of ihsl son; which falter
some debate of Ibe counsel) the Court da«lar«4
tboy ahoulil (n ax \il>«t\-j \q 1q^
I
child, and bad one or two misGarriages before
Ibe ureteoded birtb of the plaintitfl ^
Tbey atlerwards came more directly to the
question, and called witness to prove the actaal
birth of the plaintiff ; that it was at Duomaine,
ID the county of Wexibrd, in April or May
1715, (thoogfh one of their witnesses of the
best appearance swore it to be in (September
1715, and |^ve very particolar reasons for it)
that there were great rejoicings, a public
christening, who the sponsors were, the nura-
ing, and bringing home again of the child,
when nursed, to the house of Dunmaine, and
his stay there with my lord his father, till
about tliree ycaraold ; this seems to me a ma-
terial, and indeed the most material part of the
case ; the jury will therefore recollect the in-
consistencies and contradictions of the i^^it-
nesses to these (acts, and judge of the truth
and probability of the evidence, by comparing
the nature of the facts testified, with the wit-
nesses produced to prove them, how likely,
how posable, that such persons as these, and
these alone, should be able to prove a fact of
this nature.
They proceeded afterwards to give an ao •
connt of this child in the several places where
my lord Altham had resided atler his separation
from my lady, at Kinna, at CarrickdufTe, and in
Dublin, in the several places, where he lodged
there, and I think one of the witnesses pro-
duced, late last night, gave some account of
faim during my lord's residence at lochicore :
Whether this evidence has substance and
strength in it, or does not rather consist of loose
expressions^ and the private apprehensions of
people, who knew but very little of ibe family,
IS a matter that will be ohisprvArl iiKon bv thoM
judge, whether it does not very
trndict and refute itself, and abc
person did of himself desire, and
regular way procure an opportot
abroad, without the least interpo
part of the earl. They then callec
ncss to shew my lord was soseosibl
tiff's right, for tins is the turn the;
taking advantage of a misfortune
ed to befall him, his killing a oian
cident, the carl had him indicted ai
fof that fact, in order to have li
convicted, and so to put him out
and to conclude all with a tjnishin
same witness tells you, that the <
the estate, and honours, and all w
tiff's right, and that he had a fu
strike up a bargain with him. If
at all interpose in this prose€uti<
shewn to you in proper time, that
drawn from such a piece of uiisc
no means just ; and we shall in
witness being entirely unsupport
fact, had, of his own shewicg,
share in the transaction, to be c:
serving of credit, as to this, or any
of fact.
This then, in a few words, is t1
general tendency of their evidcm
these circumstances and facts have
by whom, with what circumstanc
bility, and how just their conclusii
ters that might well deserve the <
of the jury, though no evidence
fered on our part, by comparing
mi^ht be expected, and must 1
their power, if the faci really v
wotilrl now havp. it thomrht to he.
und Richard Earl ofAnglesea.
A. D. 1743.
[1258
B kiDGftlom at the time of the Re«tt>*
i great adtlitioDS to it ; his credit at
the condition of the times, gave
id to many others, an opportunity so
I estate, taken together, does, as 1 I
ed, far exceed any other now in tlie
this earl, Arthur, had issue Afe
8, Altham, afterwards created lord
ichard, Artliur, and Charles,
larriago of his eldest son James, with
the Rutland family, he settled the
rt of his estate in the usual manner,
ions over to his other sous, and their
issively, in tail male, and soon aAer
is eldest son, also died, leaving issue
riage, three sons, James, John and
the second son of Arthur the first
If ithout inue, and his honour de-
lichard the third son ; and this
rd Altham had issue, Arthur, late
1, and Richard, the present earl of
the fourth son, of the first earl
d without issue ; and
the fifth 6on, died, leaving issue
s Anneslcy, whom we all know. •
James, the eldest son of earl James,
son to earl Arthur, being in poa-
he honoinrs and estate of the family,
ines, and suffered recoveries of a
>f this estate, in order to dock the
and heii)^ thereby become tenant in
lie year 1701 made several wills and
posing <if it. By the first of these
May 14, 1701, after the limitations
ihers, on default of issue- male in
•vised his estate to his uncle Richard,
D, the defendant's father, and the
of his body, and in default of such
is uncle Charles Annesley, and the
of his body. On the 9th of De-
owing, he made another will, and
estate in the same mnnner; after
' that his uncle Richard, lord Altham,
little time before, he apprehended
le wrong to let his name stand
I, and therefore, in the will of
drew a line across his name,
I of Richard wrote over it Arthur,
he limitation stood to Arthur, lord
id the heirs male of his body ; by
ation Richard, the younger brother,
efendant, stood excluded from the
After this he made several codi-
I have not read, but by some of thcin,
he 14th of May is recite<l and esta-
others the altered will that was in
but by the last of these codicils,
May 14, 1701, is, as we apprehend,
up and established. This we shall
t admitted, from the tvills and codi-
I DOW on the table.
!r this, earl Jamca died without isiae-
mtlMr John alio died whlioiit Ltotie-
male^ and Arthur the youngest brother suc-
ceeded to the hotM)urs and estate. From this
confusion in these wills and codicils it remained
a matter of great doubt, if the late earl Arthur,
and the late lord Altham, shoulil both die with-
out issue- male, of which there was no prosi>ect,
who should succeed to the esttate, whether the
present earl, under the first will of May 1701,
or Mr. Charles Annesley , under the altered will
in December 1701 ; but the general opinion
was, and it was the apprehension of the late
earl himself, that the present earl stood ex-
cluded. A son of the lute lord Altham would
have made this question unnecessary, for clearly
be must have succeeded to these great honours,
and to this vast estate. Such a son, and such a
birth, must therefore be an event, as of great
consequence, so of great notoriety ; bow conld
it be onknown, or known only to stich as yon
have seen, in a country so |tcopled, and, as I
may s^j, in the midst of their own estates?
But it will appear further, that the late lord
Altham was possessed himself of an estate of
about 1,<200/. a year ; the town of New Ross,
in the ncighbournoud of Dunmaine, was part of
it ; this estate, on the failure of issue- male in
him, was to go, not to his brother the defendant^
but to the late lord Anglesea. Jt will appear,
that this estate, on the death of lord Altham,
was entered upon and enjoyed by the late eari of
Anglesea, until his death.
Is it possible then there could be such a son
of lord Altham, and the late earl know nothing
of it? Could he be such a stranger to his own
fieimily 'f Nay, though a stranger in other re-
spects, the turd Altham and his family, and his
family-affair:^, made too nmrh noise in the
world to supiMHse it possible. There is no pre-
tence, that the late earl was concerned in any
iniquitous scheme. If he knew of this child,
can it be supposed he would do him such an
injury ? In policy, if from no better principle,
sure he would have more regard to his own
character.
My lord we shall shew it further in proof,
that the late lord Altham, for particular rea-
sons, was desirous to have a son, and would
very greatly have found his account in it,
being in remainder to the Anglesea estate ; as
I said, often in distress for money, one method
of raising it was by the sales of reversions
of (larts of this estate ; the validity ; of these
sales depended on his surviving the lato earl
Arthur. Now upon his advising with counsel,
touching these intended sales, we shall prov6
he was advised and informed, that these sales,
as matters stood, could produce but little
money, because the title depeaded on the con-
tingency of his surviving the carl, who was
judged the better life of the two, as it really
fell out. But if he had a sou, that something
worth while might be expected, because then,
by levying a fine, the estate would have stood
assured to the purchaser so long 4s there was
issue male of his body. This we shall prove
by a gentleman of unidoabted t«xa»l^ ^aoi&iAr
putaUon.
1S55] 17GE0BGEIL Trial m Efeetmat i,
Ii M Monury before I meclion the mtare i blwh tlii* het ; Ar d
af aur prooti, i^ lake notice of Uie meUiod so touch or it, wbit i
obMireil ia protlucing tlie evidence that bM «Dler into cridearey '
been already :;iv<;ii, in order to airend l)ie g«n- bolft preMtBptiM?
tiemea of tbc other tiite in the »ame netliiMl. Kenu, witbftl nr '
I'l <rh Ibey were rery lennblc, tbat ibit Iberrfm it wu#^ ;
fact, if true, inuK admit of tbecleare»t proof Ifast tbe 4tfc^^ f.'i
in ttie affirmative, yet, they were pleued to be- '
fiin, ai 1 thought, at a eoDsiderable distanee dMlh) eVpM ( ' e_i
trom (he point, and took up oiuuli t'-~ ■ ' ■' "* ' ' ' ■ •
Thomas Rolpb,
_, uri lived with him
ided birth ; my lord's
some other aervants
ere in tbe fatnily and
nd Ihey all agrte in this,
with child ; liiat there
ir birtli Ibat they ever
(his, ne apprehend,
than that of llurphy,
e ih<«e people tcatify
lin their sphere, and
such a fact.
lace persons or the best eondi-
^ jbhoiirkood of Duomaine, be-
wid my lard AUIiam there passed
jf visiii, and with sonie
(he inlimacyiTB* very
' "rs. Lambert as
', and lier bjiband
't Uunraaine to my
I himself al Ross ; bis dealing, as
Abourhood hdU acquaiD(aDee, ge*e
m lady great opportunities of linow-
jThii family than tnaoj others.
wall colonel PaUiser, niwl alio hU
conduct can only be
believing^, theirnot L
tiiey bad beard ; an
this, 1 can't bat tbi
might safely rest m
Bat we shall go
~- an accoout of I
of hi* birtfi. '
Ireland, my lord wi
to town, they wen
time, and then they
One Joan I^ndy w:
of my lady's tximip
maid there ; and in :
■ohiff with child, t
luowledga ; upon
and went to her f)
land of Dunmaine,
from tbe house. A»
bad.
, KIT*
resolred to make hi
We shall shew the I
raanner of keeping
tion of my lady : W
separation, the cbi
house, and (he schoi
lived at Dunmaine
Landy's child died i
this child ; that my
that it was brought
rickduffe,udDiiUii
ard Earl t^Anghtea. A. D. 174S. [1S69
■ecordinr to our pten, that the defemluit is oot
- of tt ■
no other. Tbia
a1 placea, not by
e who knew my
'■■II prove to you
-*hen at tho*e
^liooeil: we
N neglect
, him naomt ;
fd characier, and
ieied here, it will
er complaint* of
■vtt was the least
to a son or cbilJ
ceupon tJiishead,
ircumBtancet, we
ence ; but much
b, wlien she saw
another the ho-
sdit that mast be
iffht he appeared
I uie coDsi aeration
; be doei notpre-
entattbeconfer-
nnt of, H> tbat we
trailict faim.
uLlf'i wilnrsBC*,
etr efidence, we
^ucejnanl^ndy,
ritnessM, and in
la be the molher,
; can there be a
t which must of
keejiing back tbia
hare now stated,
fhich haa escaped
is is done, as we
'ill be tried unio-
ns that hare ool
ter in issue, and
d creditors of the
a rigbt to incceed
ill receive no pr«-
at do not properly
!>\y bare no rela-
oubt but jon will
irinett, by finding
We shall now, m j lord, begin to call our wit-
newet.
Nicholas lo/hif, «•). ■worn.
Says, he has lired at Loftas-hall, in the
coanly of Wexford (where he nnw IItcs) up>
wards of30 years; that Dunmaiiie is diilant
from it about eisfht miles, and deponent knew
lord and lady AUhaoi, bul deponeut or bis wife
''erer Ttsited lliem ; says, lie never heard that
lady Altham bad a child, or that there wer«
-ejcncings at DnoiDaine for my lady's
^ebikl. Beio|;asked, if heknowiIUr.
taraes, and wheiber he is ool im-
jm memory and understanding- ; says,
jWS bim very well, that he was at depo-
.it's house last summer, and t* much im-
paired of late in hia health.
[Here the cooDsel for the plaintiff iiwitcd,
that it was improper to ask a witneta hia o^-
nion of another's underBtandintr, who had be«i
examined, and croM examined in tbe Coun,
for that the gentlemen of the jury were tha
proper judge* of it]
[Cross-examined.]
Beiiigaaked, ifhe remembera where he wa*
in Ibe year 1714, or ITIS ; aaya, be remem-
bers be returned from Englaudabout (be be-
ginning of tbe year 1713, and that about the
beginmngof the year 1714, lord Beaborougfa's
lai^ dying, his lordship was fond tbat deponent
shonld stay with him for some time after mj
lady's death ; so that deponent spent most
part of the year 1714 with his lordahip, but in
the summer 1715, deponent to the best of bis
remembrance, Ured at Lothu-ball.
Ssyi, he wai Tery well acquainted 'with my
lord and lady Altham, and frequently i' '' '
. «y».
he ntrer heard tbat my lady Allbam bad a
child, end is positire in his conscience sh»
never had during bar continuance in tlie county
of Wexford. Deponent indeed heard my lord
' ' child by one Juan Landy, but never
heard he had one by his lady ; says,
Buch an intimicy between my lori
and dniooenl's, that generally once a fortnight
they Tiaited each other ; m that be '
my lady had been ill be must have known it i
and deponent never dhectly or indirectly heard
that she had a child, or that she was conBned
to her chamber on account of any indiapoaitiOD,
or ever had any miscarriage, and if she had,
deponent belieiea he thoiud bare heard of it
sooner than any person in the neighbourhood ;
says, be irc4V<KMl j ww m^ \m&i w>atwi^l«'»^'
(wbo was deDODcnCs old f'ricDd) bui did ua
know bis laJv, nor erer saw them at Dos-
12GS] 17 GEORGE II. Trial in Ejecinuni between J. AnMsln/, esq. f 1264
the cliiirch of Kilmacky.aDc] she never appear*
ed to be witb child ; says, be knows that lord
and lady Altbam separated, but cannot recollect
the time ; believes my lady lired two years and
a half at Ross ofter the separation; says, he
never had any discourse with my lord abont
my lady's having^ a child, and never heard
from man or woman that she ever had ; says,
Ross is about three miles from Dunraoine, and
«loes not believe it was possible my la<iy could
have a child without deponent's knowing it,
ibr, to the best of his recollection, he was not a
month or six weeks together without seeing
her ; at least he is sure he never was above two
months without visiting her ; says, he never
saw any child at Dnnmaine : that lie knew
Joan Laffsn very well, she having lived with
deponent as a servant, and says, tiiat she was
turned away from deponeut's service for whor-
ing, that she is an infamous ^oman, and depo-
nent would not trust her for the value of a pota-
toe. Being asked if she is a woman to be be-
lieved upon her oath ; savs, by the virtue of bis
oath she is not to be believed upon her oath,
and that the whole parish has a bad opinion of
ker.
[Cross -esamined.]
Being asked if he can recollect where he
lived in the year 1713, or 17 14 ; says, he lived
in the year 1713 at the Great Island, that he
was building in the barony of Forth in the year
1713 and 1714, and lived backwards and for^
vrardf*, between the Great Island auu barony of
Forth in those years, and can't recollect that
he was two months together at the barony of
Forth whilst he was building there. Being
asked if he knows where lady AUham was in
the year 171i; says, he cannot be positive
where she was at that lime. Being asked if he
saw lady Altbam from September to December
1711 ; says, he cannot say be did. Being ask-
ed how far the barony of Forth is from Dun-
maine: says, about 14 miles, that he kept 60
acres of the barony of Forth in liLs own hands.
Being asked, if he would take upon him to
swear he was not six wiH^ks together in the
barony of Forth ; says, ho will not take upon
bim to swear that, Lnt believes, ank'ss he had
the gout, he never staid there six weeks toge-
ther. Being asked if he had not often the
flfout; says, he was oAen laid up in the gout
Being asked what time he bcgau lo bnild in the
barony of Forth ; says, he began to build about
the year 171'2. Being asked if he ever was
two months together in the barony of Forth in
the year 1714: says, he was not there two
months togetlier in that year as he knows of.
Being asked if he knows of any particular cir-
cumstance that happened at the time of the se-
paration of my lord and lady Aliham at Dim-
maine ; says, lie knows his sou was very ill at
that time, that he cannot be positive whether
he aaw lady Altbam in May, June, or July
1715. Bein|r asked if he knew one captain
Brisco and bis lady, and if be ever saw them at
l}iwmm§; fayg, be knew caiitain Briscu,
maine. Being asked whether if they bad coooc
there as visitors, deponent would not you have
known it ; says, he believes he sbouM. Bday
asked what tune deponent weot lo lire at tfaa
Great Island ; says, be went to live there nbea
the dukeof Onnond 6rst sold |iart uf bis estiie
in Ireland ; says, he does not know who ime
lords justices at that time, but rememben M
Gallway very soon after iu thegovenunesi;
that he was twice m the government; oocea
lord justice along with the lord Wincbdsea;
remembers he lost his hand iu qneeo AoBe*!
wars, and be made deponent a aheriff of tW
county. Being asked how long' ago it ii
since deponent was sheriff; says, about tf
years ago. Being asked how many yean k*
ponent was building in the barooy of Fcntfa;
says, he can't tell if he was three years build-
ing'there. Being asked if my lord cane u
Dunmaine before my lady ; says, be dli
Being asked if be knew lady Ahham before da
deatli of queen Aojie; says, he can't tell 1tk^
ther his acquaintance with her began before «
after the death of queen Anne, but is pontifB
he knew her from tlie time she came lo lire il
Dunmaine, until she left it, though ha oil
tell the year she came ; says, lie did not koM
her before he began to build his house is lb
barony of Forth ; knows he visited my lad^ ii
a week aAer she caoM to Dunmaine.* fitff {
asked if he saw his friend c:aptaia Brisco vha j
he i^aid the first visit there ; says, be did M !
Being asked what time of the year it was vWt '
he paid his first visit; says, that, to tbebeac^ i
his memory, it was in summer time. ha\'Z J
asked if my lady came to town in parliaoNtit
time; says, he is apt to believe she did; I^
members he \isiled licr at her lodging atiW
coraer of Dirty -lane in Fleet-street, and rciDC»
bcrs the street, liecause horsc-s are wati>red te^
ni;;:h it iu the river. Being ashed whcUwrlie
was not two montlis at a time together in
Dublin, when my lord and lady resiiled a
Dunmaine ; says, he does not know that k
was. Being a^Led if ever he heard that oj
lady was sick for a week together whilst ik
was at Dunmaine ; says, she uii;:ht be Mck •
week, but not to deitoueut's knowledge. Beiof
asked what reason he has to believe that Jon
LafTan is not a person to be believed upoakff
oath ; says, she is a woman of ill fanit tW
keeps a Shebeen- house,* and led an ill ^'
Being pvesse<l to declare upon bis oath if k
was ever present, and did know her to tbnwetf
herself, or did ever hear tliat she did so ia aa/
canse whatsoever ; says, be never kaewi tf
heard that she was ever forsworn, bul yrt ^
ponent would not believe her upon her oatk, '
otherwise. Says, he knew counsellor Pi^
and his lady; that they lived at Tt"IA
and deponent believes they used i«» risii'
Dunmaine, for deponent once saw Mr. ^^
there, but cannot recoUea if ever be uv cinf
\
* A little ale-boiitei
and Raluird Earl i^AngleMta.
[1S6G
n th^e more thtn Ihnt <me time. Briofr Allb^ had k cbiM by fan lady, nd doei not
if lieKineniben the IleitellioD in IScot- I believe be ever hail, becauM ilepooent waa
aajis, he does ; that deponrol wai then employed by my ~ ' '
liaiiieot, aiid IodIc particular notice of my I oo nil lordsliip'i t
1 irsj,
title, undertiie witli and codi*
cils of James earl of Aog;le5ea, nhicb deponent
carried to counsel, and savs, they gave tlidr
npinioD, tbal if my lord had a ion, and of age,
and lucb bod would join ivilh my lord io levy-
iajf a fine and tufTering a recovery, then hia
lordship might dock (be entail, and sell the re-
TeraioDs of auch part of the Ang'Ieaea eatate aa
he KhauM think fit; that thereupon my lord
told depooent, he had ou legitimate aon, but
had one that waa illegilimate ; and deponent
haa heard my lord wish that he had a lawful
aon, because then he could raiae mtfney by Iha
sale of hi» estate, his Iqniibip being coiDOionly
in a very needy conditioti: remembera to hare
seen a bay in tha street at New Rosa, oppoait*
en inn kept there by one Brehsn, in a poor
mean habit, (like some of the common boys)
who as somebody told deponent, was a bastard
son of lord Atiliam's by one Joan Landy ; and,
in anme time afterwards when deponent lav
my lord, he asked his lordship, bow be muld
■offer hit bastard son to go about the ilreels in
that poor way like a brirgar ; and the answer
my lurd made was, that if be was sure the boy
iva-< bis own son, be would take care of him,
but that, as several had to do with the boy'i
mother. Join Londy, he very much doubted
whether he was llie father of it ; bat can't say
my lord was at Ron when deponent aaw tba
cliiid there. Beioic asked whether be kueir
the late Arthur earl of Angleaea, or that there
was any difference between hiru and lard Al-
tham ; isys, he knew the earl very well, aud
tbal there nere some disputea between him and
lord Allham ; and that in a suit in Chaocay
between them, lord Altham iniifteil on bia pn-
vil^fc, and lord Aiif;le>ea could not get a lawyec
to speak for him, whereupon bis lordship stood
u^ in court and spoke himself Bein^ asked
wlieiher he knows that the lord Altham and tba
iletenilant were on good terms ; saya, tbej
were loinetimea on good terms, and soutetimea
that lord Allham wanted the defendaut to
of the Ao'
tbe deteuUant
would join, and ii<>metiiiies be refused joining,
aud on defendaul's refusal to join, (bey dia-
i>irrced. Being aakad if he ever aaw my lady
ai Uunm 'iue ; rayt, he di<l ; for he was ihera
twice to vikit my lord, but does nut remember
the (larticular time, only that it was helbre (ba
tieparattun, and alter they I<hI^ at iVlr. Vice'a )
snys, he never aaw any child in the liouse of
Uuumaioe ; that depuneiil dined, but did doL
ijrsd by bis lorU»liip in bis professiua of ! lie there ; did nut i)l)tei'>a any HJifns of my
lAn^iit III several causes, and i>n many lady's being with child, nor evtr heard she bsd
' ' cbibl by uiy lord ; has heard she had a child
i^ollsnd before she came tu Ireland, and has
eaiil that tbe child is dead. Being ukedif lie
ver heard what wurelliK motives of mj' lord'a
BinK recimGiled to hi* lady, and living nitli
, _ ..er «k;aiu ; aays, he never did; wys, that tba
unaiiie. Siyi, he naver beard that loid ' reputation uf ibt ceUDtr} Hai,tlial ui<| lncd.U&
Itliam at thai lime in Dublin, because hi
lely lust one of his eyes. Being asked if
r aaw his lordship at Dunroaine after the
uf his eye; says, he never did. Being
if he knew one Dennis Keilmonda; says,
a ; that he was once serVsot to my lord,
lewise deponent's servaut. Being aakral
oneot baJ any, and what, discourse with
itely ; says, he bad ; that one day when
mus was brealung burses for lieutenant
ur, dcpooeal said to him, 1 Gnd you are
to be a witness betweea turd Anglesea
r- Anneslt^y, pray, what do you kunw of
laltrr ? To which he made a'nswer, All 1
is, that I was sent for a midwite from
BJue tu RoBs^aud that I brought tbe mid-
nua tbe gale of Dunmaine home, and
I left bet. 1 dun't know what became of
erwards, nor for what purpose the came,
r whom she waa Mut. Upon which I
I biin, Iftbat be all yiiu have tossy, your
will be of DO use: tu which Redtnondt
riten he would not go.
IS ended the Examination on Wednesday
the 10th of November, almut 10 of the
when by the like conwnt in writing, as
, read in open court, and signed by the
I, tbe Court adjourned to tbe next luorn.
>r the cktck.
Tkurtda), Nmembtr ir, 1743.
t Court being met about 9 o'clock in the
BJ accordiu^ to ailjoiirnment, the Jury
wiled over, and anawerid In their names,
:ta the counsel tor the defenilant proceed-
iXamine their wituesiej, as futluws :
William Wall sworn lo the Voire Dire^
a, he purchased a lease of some lands in
unty of Dublin of the laie lord Allham in
of which he never got pi>iise»iiun, they ^
[ been sold before by hit Inrdithip to Kir i jnin with hi
r Langfbrd, on which account ha got " ■
'rom lord Altham fur SOf.that is yet ui
•re the counsel for (he plaintiff objected
I competency, aa beini; a iwrson under
but the objection was over -ruled.]
Being sworn in chief.
It, be knew tbe late lord Allham from the
I7lfi, to (he time uf his death, and was
; that he knew Inlh
idy Allham, who then loilged at Mr.'Vice'a
•H-street, toon afti-r my lu<ly came over
I kingdom, and that atlerwardi iny lurd
idy went to Deamaioe in the cnunly of
ml, ud demtnent visited llwin ~
tL. XTII.
1 4U
1367 J 17 GEORGE II. Trial in Ejectment between J. Annedey^ etq. [1SG8
no legitimate issue at bis death. Being ask^d
how uld he believes the child was which he saw
at Ross ; says, he believes, by bis size, be was
about 5 or 6 years old.
[Cross-examined.]
Being asked when it was he had that dis-
course with lord Allham about the child ; says,
he can't recollect the particular time, but to
the I>e8t of his remembrance, it was either in
the year 17S5-6, or 1727 ; believes it was after
depiment took the opinions of counsel on my
lonl'K case. Being asked who was the person
that told deponent of the child which he saw at
Ross l»eing a bastard of my lord's : says, he
believes it was Edward Brehan that tuul him
so, and be said, that he was ashamed that my
lonl did not take care to clothe the child, or
send it to school : deponent says, it was at
Ross he spoke to my lord, and not at Dun-
maine ; that my lord said, bis reason for neg-
lecting the boy was, that he did not believe
him to be bis own, the boy's mother having had
dealings with other people. Being asked whe-
ther it was before bis present maiosty*s coming
to the crown that de|>onent had the discourse
with my lord, or if deponent was then in
mourning for the late king ; says, he cannot
tell. Bemg asked if my lord and lady lived at
Dunmaine when deponent saw the child at
Ross; says, my lord was at Dunmaine, but
can't tell at this distance of time whether my
lady was there or not. Being asked if he was
often at Ross ; says, to the best of his know-
ledge he was every year at Ross from 1707 to
1720, for deponent went the circuit to Uoss at
least once a year during that time. Being
jfiked when he first became concerned for lord
Altham ; says, he cannot recttllcct the time,
but believes it was before 17v20. Being asked
if he cau say it was before the year 1729;
says, he is not sure, but believes it was some
time before 17'20 ; is sure he was concerned for
his lordship before and after deponent was at
Dunuiaine. Being asked if he remembers
what year it uus he saw my lady at Dun-
inalne ; says, he does not remember, but be-
lieves it was before he was concerned for my
lord ; says, that lord Altham was very poor at
that time, and helievrs he might have sold on
better terms if he hail had a son, because he
could then have cut olf the entail.
Aaroti Lambert y esq. sworn.
Sa3's, he knew the late lord and lady Altham,
deponent having let Dunmaine to his lordship,
about the year 1711; says, my lady came
there in about two yeai-s after, aud continued
there for about two years and a half; that
deponent hvcd at Ross while my lord and
lady lived at Dunmaine, and deponent lont
his lordship the sum of 500/. and some plate,
and was frequently at Dunmaine to dunn my
lord for the money, and deponent had some
land in the neighBourhood ; says, he never
heard that my lady had a child during her stay
«l DuDOioiae, uor ncrer obf er?ed her to be with
child, nor never saw a child ahont the hoise ;
that deponent happened to be taken very ill,
and for conveniency of having one Satton, who
was a famous surgeon, and fi»r tho benefit of
the air, went to Dunmaine, and cootinaed there
for two months ; that it was in the spring, nni
lord Altham was then gone to Dublin to se!l
some reversions, in onler to ratine roocey, ami
never returned back, whereupon deponent set
Dunmaine to one Mr. Uniack, who came to lire
there about the Blay following ; says, tbit
when my lord wentawav frnm Dunmaine, Mr.
Sutton the surgeon, Jiir. Tavlor, and Jou
Laflfan lived there ; says, that Sutton and Tav-
lor hved with my lord at Ross, bof'ore ray laiij
came over, and deponent beard that Sutloa
came over from England with ruj lord, bit
was turned out of the ftimily for excessive drink-
ing in two or three months' after my lady nine
to Dunmaine ; says, that Sutton went to lire it
Ross, and in some time afterwards my hit
sent for him to attend her, and deponent diaci
with Sutton the day he was sent for, and wu
in his company when 'the messenger caor,
and he sent word to my lady, that he conM ail
go on account of his patients ; that the oai
day he was sent for again, and made the sue
excuse, and the third day my lord's chant i
came to fetch him, and then he went to Dia-
maine, and attended my lady there for abooli
fortnight. Being asked, if de|K)nent coald r^
collect what time it was after Sutton left ihi
house at Dunmaine, that he was sent for ; tap,
about two months after he was turned oat of
the house ; and the reason that Sutton gw
for his not going on the two first messt^'M,
was, that he was piqued at mv lady's usage of
him, and he seemed pleased to lind that nj
lady was uneasy for want of him. Bfisf
asked, if he ever heard of one Thomas Brooki^
a surgeon, that lived at a place called Farecs ;
says, he never knew of any such a man »
Thomas Brooks, to practise surgery in tbil
country, nor does deponent know a plan
called Fareen, though he was born at urn-
maine, and knows all the country about it;
says, there is a family of the name of Brookffr
that lives at a place called Fookes-mill, under
one Mr. Lee, but deponent does not know bio.
Being asked, if he believes that Joan Laiba
ought to l>e credited upon her oath ; say?, he
does not believe she ought to be credited *on hs
oath ; that she is a woman of an infamous cba-
ractcr, and was only an obscure servant in ibi
family when my lurd and lady lived at Dun-
maine. Being a^ked, if he ever saw hertabi
care of any child in the house of Dunmiior;
says, he never did, nor dnes deponent believi
tliatshetookcareof any child ; that depooetf
was at Ross at the time of the separation be*
tween my lord and lady, but cannot recolM
the year. That he saw my lady coming n
Ross that day in a four-wheel cama^
but cannot tell whether it was a chariot orft
I chair ; that it was duskish when she
but believes candles were not yet \ii
' that a great many of the people eaae
126<)3
and Richard Earl 0/ Angfrii
A. D. 1743,
[1270
■be nul
lliB liny
ttf their lionac* la tee Iter |>ats bv, ami Mri.
H«klb tier tntant uiDid was with her, doiI
1 Mrt. Buller'f ; lielieTcs
ion si Llial lime ; tayi,
be beard of the sepxriiliiiu before my la<ly
CtUM lu Rum. Beiii)[ a^keii. u la Joan Laii-
ij i laya, lie kuew her add her talber. ihat be
fune ID Dunmaine a collier, a year or 1« 0 be-
nt* my lunl came tlieie, atiJ had two daugfa-
te«, ks well u depouent cnn remember, one
«f nbtcli was called Joan, but vlwlber he
bid aoy olher chilitreii d>'|iunent dnn'l know ;
M}r>, be saw JonaBboulllie house orUuDinaiDe,
\m my lord's lime, bul ilun'l know whellier she
VM ■ aerTsnt there ; that the other dsngbler
Vml to the raunly of Kildare, and now goes
ijr tbe name u I' Dun; says, he nerer beard
■ur lord speak about Joun Laiidy. Being
«ff«d, if be erer beard my lord or lady tay
yiey liad a aoa, or erer heard it reputed m (he
««UBIry, tbnl ibey bad ; says, be never beard
■By Ion] or tady cay they bad a son, and It was
Q* RVneral reputabou of Ibe country, that my
i^cd likd no issue. Being asked, nlietber lord
^Jtham and hit brother the defendant lived in
^{iiaodahi|i logelber as brothers 1 tayi, tlial
Mnetimes ibey were friends, aad sumelloiee
■at, kod my lord would inmetimes turn deTea-
put out ol doors ; tliU deponent was once in
^kt house, when lliev disagreed about a dng
fm bound. 8ayi, lliat my lord enjoyed the
during bis life, and ihnt after bis
t,Arlburearl of Anglesea enjoyed it, and
~ mt bas seen lord Anglesea's receiver cul-
[CrOBs-exn rained,]
g uked bow uAen be was at Uunmaine
■y lord lived there ; eays, be might be
^ Ugelber wilbmit being ul Dunmaine,
lever Ino months awuyj
e army, and married the
• *wr l>dy Allbam uanie over. Iking askeil if
' f0 eter lived at Walerford; aays, he did, at
9p*Ur. Joue«'> tor three months, but deponent
' MM every futlnight or ihree weeks to Dun-
^■ioe. Being asked bow long be was in tb«
■any; says, lill about 1€ yean ago; that be
tMKbthii cummitaiun Ibe year my lord A]-
ibkm cnine to Dunmaine; that the fint year
liewax ijiiarlired at Ross, and tbe iiejit year at
HuUlui . VI1 1,1, Ibatwiicn he had done bisdnty,
tia Uat1 1)11 liberty of fioiug wbeiv be plaaieJ ;
(■yt, lilt' uiAi'LTS usedioduduty lorafortoiglit,
■DM then i;o where they hked for a monlb to-
Betlwr ; that h« »*■ ahcrwards qunrtered at
flBinagar, where be staid IhiI lor a, fortnight,
■ad went to Dunmaine. Being asked where
#• wu fu altered in 17 IS ; says, be cannot be
WMitiTe, but believes he migbl be on Dublin
I «aly In that year ; but says, be went lo tbe
.anDtfy seversl times, and never was three
to^ctber al any tiuarters wilbont seeing
. . .ine : says, be lias been paid ibc greatest
. offais SOO/. which he lent my lordAllham,
nine IriBe atill remaina due. Being asked
',/iliBCBt loily AlthuBi bad when Sultvu
Hrt of bis S<
^Bt nine Iri
■b^/ilsiM
went to visit her ; says, be would lell what ail>
ineni slie bad, ifleave was given him. Being
asked if 8nlton was an inlirm man: lays, he
believes he initfbl be I'onlioeil uilb ibc aoul
■bout a monlb at a time. Being asked if he
i-emcmbers the death of ^uecn Anne : says, he
does ; nnd that, at the time of her death, ho
was in Laugslon's horse, and renienibera tbe
regiment'sgoiui^iniomoiirniug. Beinj^aaked
where they were quartered then ; Hy!j,hebe-
Jufveslhey were quartered iu Dublin; says,
thai sickness baa impaired bis memory a* lu
time, but not as to facts : says, tbe deteiidanl
lord Anglesea oerer sent deponent any venisOQ
as he d^ to other people, but yet, where an af-
Tair of Ibis sort required his slleadance, depo-
nent would lor the take of justice, come lo surve
him, though he should be forced to come in ■
liorse- litter. Being asked bo» luany places be
luny bare been quartered in since tbe year
1T30; sayft, he belieres became from Dublin
to Mulliugar (in tbe county of Westmealh,)
and from Alutliiigar 10 Csrrigoashure. Being
naked ifbe ever saw Paul Keating, and bad any,
■nd what dttcourse wilb bim ; says be saw
bim tviibiii this half year, but thai being told
lie was a creature of aomeliody's that waa
setting up for Ibe earl of Anglesea's estate, de-
|)oneul bad a bad opinion of him, and iherefore
was aware of bim ; ihni denonent met bim
one day at a billiard table, when Keating eu-
Jcavoureil lo insinuate liimself intn de|Ki-
netit's acquaintance. Being asked if be
ihoiiubt it wusjiotalbleforlady Allbam lo have
a child (vitbout his beariu^ ol it ; says, it was
tmpusaihie almost fur lady Allbam to bare ■
child without his kilowing it, or at least being
iiild of it by Ibe tenants about Dunmaine,
whnro lie oflcn saw. Being asked if my tord
and lady A III I am were in Dublin during any
nne sestion of parliament ; says, he believes
lord and lady Allbam were one sesaion of psr-
lisment in Dublin. Beinv asked if be knows
colonel Dixon, and wheloer he was not uftea
al hia house in the country i says, he knew
colonel Dixon, thai he lived at Colverstnwn io
the county of Kitdare, and deponent was there
nOen tor livo months logelber, but that waa
before deponent was in the army ; says, that
colonel Oixon was bis slepfatlier, "being married
to bis iiiuther. Being asked if Ue never ivta
quartered at any other place than those before-
mentioned ; says, he was once quartered at
Alhy, iu the citnnl^ of Kildare. Being asked
■f be was always in terms of fiieodsbip with
lord Allham ; says, that lord Allbam was in-
consistcut with himself, fur one day he WW
food of deponent, and another be was not,
and that be bad frequent quarrels with hint
about his money; says, he never bidaprolec-
lioii, and never niade an affidavit about this af-
Tatr : a»ya, bis memory is as good as e»er,
(except when distnrlwd wilb too many quts-
■ions. or when facti are perplexed wilb a grmt
number of circuiiistances) nod Ibeu de|K)nent
cannot be positives says, that lord Ahham
ivould be out witU ilepouenl sue inomeutyi
12711
17 GEORGE II. Trial ia Ejectment betu^een J. Anneiley, esq. [1278
in with him the next ; and deponeut remera-
bera that one morning bis lordship applied to
the government to have deponent broke, and
that very day invited deponent to dine with
him. Being asked if he ever saw Mrs. Via-
got or Mrs. GifTard at Dunmaine ; says, he
never saw either of them there, hut be believes
Mrs. Piggot was there several times, and has
heard tliat Mrs. Giffard was there after lady
Altham came down to the country. Being
msked if be knew Mr. Brisco ; says, lie does not
know him, but has heard that be was collector
of Wexford, and was broke tliere, and went to
£ngland to the duke of Buckiugham, and on
his return to Ireland my lady Altham came
over with him.
William Elmetf sworn to tlie Voire Dire, and
then in chief.
Says^ he lived at a place called Miltown
in the county of Wexford, about a mile, or a
mile ancf a quarter from Dunmaine, about the
^rears 1714, or 1715, and remembers my lord
and ladv Althuu) living at Dunmaine, and re-
sorted tnere to my lord sometimes as a neigh-
hour, and sometimes on business ; that depo-
nent lived at Miliovru before my lord and lady
came to Dunmaine: says, he knew my ludy
Ter^ well, but was uever intnxluced to her.
Bemg asked if he knew any, and which of ihe
servants who lived there ; says, he knew An-
thony Dyer, (my lord's gentleman) Martin
Neife, (the smith) Rolph, the butler, and one
Cavanagh, and reiuembem Mrs. Heath, my
lady's gi;ntlewoman ; remembers also Joan
IjaHTan, and Joan Lundy, who was the kitchen
maid, and was with child at the time my lady
came first to Dunmaine, and at that time in
my lord^s service there : says, Joan Laiidy left
the house soon after my lady cami*, and be-
lieves she went away because she was with
child; that she had a* brother (who lived as a
cottier with deponent) and as she used to come
to her brother's house sometimes deponeut
happened to see her : says, that w hen she left
my lord's house, she went to her father's,
James Landy, whu had a house on the lands
of Dunmaine, where she was brought to bed
of a bo3' ; that her brother told <leponent of
her being brought to bed, and deponent went
to see her at her father's in about a week or
ten days after slic wns delivered : says, that
having a curiosity to know who the father of
the child was, deponent asked her the question,
to %vhich she answtred, it waR my lord's child ;
nnd dejMXient saw the child from time to time af-
terwards u hen if was about half a year old, aud
ayearold,atJoanLandy'sfather'siiouse: says,
that ai\er the separation of lord and lady Al-
tham, when lady Altham had quitted the house,
tlie ehild was brought there, being then, as near
as deponent could judge, not less than three
years old : suys, he saw the child at the house
of James Li;mdy (his grandfather) when lie
Mas alM)Ut two ye'ars old, and that the said
house was about a quarter of a mile from Dun-
jBoaiae, Beiug asked if there was any cuadi-
road made from my lord's house to Joan
Landy 's; says, that there was^uoroad made,
but only a short way my lord made to gu i
hunting, that there being a slough there, the
same was thrown up on each siw to make it
passable. Being asked if the child be saw it
Dunmaine bou-^e was the same he saw it
James Landy ^s the grandfather ; says, ttwu
the same child, and that one day as depODeit
came to Dunmaine, be met my lord at the
door, and the child was there at that tiac^
aud while deponent stood there, Joan Laodj
looked in at the gate, and my lord espy'J bcr,
and called out to his servants with an oatb M
bring out the hounds, and set them at Un
whore, for that he would not for 500/. let lb
boy know that that whore was bis inotbcr.
Says, he never saw the child but once after
that transaction, which he believes was ooc
above a month ; that old James toady's hooe
was soon al\er ordered to be thrown dows.
Says, the child was kept at James Laody's ifl
along in a poor way till he came to DuomvsB
house. Says, he never heard that my lady Al-
tham had a child, and that the child lie saw mi
always reputed a bastard, and never wis it
Dunmaine house during my lady's iM
there, but was kept all that time at old LumIt'i
house. Being desired to describe hunAjH
house, and whether there was any allentiN
made in it when Joan I^andy came to li«i
there ; says, it was a shepherd's house, bat i
very poor one, and had only one cbimsevii
it ; that it consisted but of one room, wiili I
partition of sodd and stone ; that there wmm
glass window in it: says, it was notwlut^
washed or plaisteretl, nor any alteration mufc
in it when Joan Landy came to live tlierr;
that there was no furniture in it but a lir;^
straw bed, and all the bed-clothes not wonb i
shilling. Suys, he never saw any other bwf
at Dunmaine house hut Laody's child ;im
that when the child was at ohl Land v's hoMe,
he was clad in rags, with flannel blaukcti
about him, but when he came to DuDinuBC
house, lord /iltham sent for a taylor, sudor*
dered him some ch»the^. Says, that ilepoDWl
constantly went to Dunmaine house by Lao-
dy's. Says, Jt>an Landy herself nursed tin
child ; is sure there was no new road mt^t
but that a coatrh might drive that way, it bein^
a field. Being asked if he knew Joan Laflu;
says, he did, and that she %vas in mv lord'*
service as a laundry- maid, and was there a
my lady's time, aud for some time allerwarJi.
Being asked if he ever saw a child in the eift
of Joan Latfan ; says, he never did. BeioC
asked if bethought she ought to Itebdierei
upon her oath ; savs, he does not think ^
ought to be believed.
[Deponent's evidence being a manifest cos*
tradiction to Joan LafTan, she was ordered *
come upon the table iu order to coufroot li*
witucbs.]
Joan Ijaffan sworn.
Being uked if she knew Mr. Williaia £M
\
273 j and Richard Earl of AngUiea. A. D. I74S. [ 1 274
ad whether lie is an honest man ; says, she i year the chihl wa<i horn ; says, he was born in
DCS know him, and belieres he is an honest j the flprinfir, abuut a year hcforc (Icpniient was
lan. I hi{(h- constable; and that flic rhiM's limr \vui
William Eimes beinj? asked the sameques- i of a bright colour. Heiui^ asked if Hu ffer
911 as to Joan Laflfan ; says, he knew her • heard that lAndy's rhiiii difd of the small-
ivy well, that she was charged with stealing;
!veral goods out of my lord's house, after he
|iox; says, he never did. Ileini^ a-.ki'd if Jiv
ever made anv affidavit in this catiKe ; says, he
fed letl Dunmaine ; says, he was at that time never did. J>ciiiqr asketl how somi hcftau the;
^h •constable, and that there being a search ■ child at Dunmaine hou^e after my laily went
lade tor the said stolen gofids, deponent saw \ awav ; says, in a quarter of a ;|inir or'lf>», it
feather-bed, a coop, and an old barrel at ' mignt he in a month or sonif?thmg more ; and
Mn Laffan's brother's house, and a pair of that he aaw him onre on his grauduiotlii'i 'a
ickles in her brother's shoes, but cannot say ' back as she was driving some s\\vv\\ ; says, faa
ley were lord Altham's; says, Joan Laft'an ne^er saw lady Altham afWhu was hii^h-foii*
; that time was at her brother's house, and stable; sa\*i, that the child %^lien at Dun-
lat all the goods were brought back to Dun- , maine house was dressed in a yellow silk.
laioe house as the property of bis lordship, i ... m . /- a- j
hat he oAeD saw jUaolaffao at DDnmaine j *'"• ^""^ ^'^"^^ ""•™-
ouae, and spoke to her, and is positive she I Says, she was vrry well aci]uainted with tha
'aa laundry-maid. Kemembers particularly' late lord and lady Altiiarn, and rcmcmlM'rs my
lat as dep«)nent one day in passing by was lady^s first coniine to Dunmaine ; that depo-
peaking \o her, my lord mis^ deponent, and nent at that time lived within a mile and an
ladinii: hira in conversation with her, his half of Dunmaine ; that it was a littler l>«:('jre
Mdahip said, Will, you are going to kiss my Chris!mas, and deponent visited her in the
said. * ; Chrislni.'is hoiy-da\!», ami hf-r ladyship re«
Joan Laflfan denied that she ever spoke to tnrrud the vihit, and tliry v-sitcd each other
SliDca at Don maine, or ever saw him at Dun- frequLOily, lOiilc hr.-r ladvbhip eonlinucd at
mine house above once, and say», that the Dunmaine. 8a) &, that fsfif; Mievf-iJ niv lady
cathers (which were in the bed so foimd in her came first to Dunmaine in 1713, find c(;h' iiiu* d
Mather's house) were feathers which were in there about ihrre years or hMic-r ; «^vs, bhe
IB oM stand at the house at Dunmaine, and never obsene*] my* lady to be uith MiV'I, iior
lad been given her by my lord, with several . n»-ver heard, nor 'does' dcjron»ir.'.t bi'iii'Tc ^he
iiitben plates, and other little tbing<« not worth was, and believes it was in.po^sihle fur her
^cianvinir; bot that the tickinor in «!iich the Udyship t'l Ite with rhiid wiiliout «!• ]<'iii( nt's
Swhera were put, vi&s bon^rht by (leponeot at M«ing or hearini; M it. Tlmt *\*y:vt t.t ua^
EVaierford. Says, thai she never was iauudry- otten in niy I'jdv's dress; n^-rovm. '''.L'! s^.'a her
Vtkl, but dry'-nur«e, and at'.ended ma&ier dress herfc«i(', and was i.f'ter a m':.lh 'i^iilifj'Jt
fames Acnpsley. my lord and lady Alibam'it seeing her Is.hfch>r«. while she was ;:i D:ir.-
Mn; described Lanov's house, and the road m^inc ; savs. s>ieii?ier h'arl rnv ladv sa% ki«e
Mdetoit, as she did betore. WiJiam Elmes was with child; on ihu ('intniry, rero'Oibei^
isotradicled her as to the bouse, bot airrced that deponent be! r.:; \tf-T^\i w:ti'i rhiM, w!.«ii
here was such a road made, and thai a! ih(ius;h nny laly came to D-'Jiima:-.«-, wa» orje b«y
hey miicbt go that way to captain GitTard's, Vimewhat m*.-!ar.ch';)\, a; i co-n^.l^siuc-d a
wC the road was made no farther than to the httle to rny lady of the tro-i/i': it ^«t«- h'.r,
abio. uf'On which her 'l-idv«;iip Kki'. \VK%i, <l«j^ou
„..,,. rri - • ^j • ^^'f^p'ain ? I wiih I wa* I'j tJ-^. t-in.e c'*n-
Ilit/ian x.inf/, cross-examiced. »Lr., ,. . -k.. ii^ -• :i ,• .^. • -. .i
* U|iiob; tbat the ciiirl Q' i^t'.j-MX wa* iii*rn
Being asked as to the tiTe be visited my hi:? of, was afifrrtvar'ls born, arrj is since dead.
ani at Dunmaine: savs. he V-\*'^*^.\ wm add if he wu now al,^^•, w '.;«.•; L<; U'tu^^-'i 21'
ibtve a year after mj #<:H cam*: iJitre ; that *'^'d Z-j yean *•{ ai'*^; **>*t *-'^' x.ts^x •«.. a
It was high-ooDSiaUe in I'lr. an«J co:i«<rri:d <^hilii:nDurjfnai;i«- house s.a':e mj. la \ -• '.xe,
1m pnUic mone V. Beinsr a^k*^ Low iic: farne ao'J \s ^jre he ws% r:<fVfr: »f-r--^ri h*:' t'/«rre.
• besoparticuiar as to hikseeif'^ J'^«u L^ri-'\ Being a^k*rd if s'.e eifr ^^vi Jo^r. ijk^Ay ;
toe at tbat time ; says, be t'-'A ^mrjiar ^>f, she Le^i^r dX ^jjt on^'*. t v t'je \ • •( '.t :j«7
Nlioeof her, because »f<e was w/.o rin. i »kt*-n Lnowl^J^'fr ; br.li^tf't sL-: mi % k.;^ >^i r;.k«d
ay lady came to the Cju-.I'v. l>;rf^ a«>icH at D'jniirj.rjir h'.'j»»' : s*; ■. '.-• - y \." cin
'Bctber when he went to Dui.'.aine iioase tie a:>d dt-(Vi'.<:r.t Mtr.* .-• ,« v \ ...?<. vr". t«
■edto dine there, a o<J wf*«-i;**^r i.e Cifjed wiijj i>,* a-.si%(-s of •?•".■ .■ : t / - - ■ "-t at*-, v.*^
■7 lord ; says, he d.r.-*r«j twir* or iriree t.nrj*-* there f'^r \it. -.'^ rr =^i :■ • :■ - i'-e*.^ '*-■ ; liit
»t Ibe tible'wiili h.v '.ni. ijt'ore :r,\ la/iv ontilr.V* *',!,*..:. I -i.. .r» •.-.••-.>!: Ml*-
>n>e, hut afierw-ar :s '." ^•r'J ••:'•» '':*: ':''>tr- ur^.rj h.v 'i'-;i'*».»». '• J v-.r :J • - *. r ^^,iz,iM
"rrants; aavs. he sr».'».e iv J .i'. I-a&'iv »: •*':•: t'.j :*?•. -ii-.'-i; : i- . -i.ci ai.; o*.
*r father's house, as^ :/ »i *i»e .•: r<'t •.•i* ;*'.;<,*•.•. ■■«••.: ■ *.v ' .-*. ■ * .•t#»r iu'. *-• ;
•Wg at Dnoonaice afwrr lai} A '>»»ft c-t.* hj. «. "i ••»- ■•■ ■•• . -_.-.*«. .••.•si ?
We, and i* sure thai *t*r ■» ts ^'O a u^ '*'^- if.-*- ••.! i*j :• ■■ •. -- . * *-• *• * * " -
'ered, Beia^ asked i:*- ♦.-'.•.-. -r '.? ,'•.-•. i'.n-.-ir
*ad|j*a diild'i hair, aad wl^^t i.xt &; li.-^ aa^^t- *:.: « /'.i-.:.; l^: i:*t ..•:^-:1^ v^-l klz.
newer obtaiwdniyUijr to be withcUd.Btt ;
Witt ^ My M Wc^rd tat •
IbmByW^Bid
4hiU; HnthaMWlieatdaMtajMrhid
■<yB,»J«h«llnrl>dybiplwl«»miMrHfii
«rbriwwilh«liUd,«ttkitiiM. Btifmkii
■r Aa Mar Ihm< «f *lMn Mnr uj rqoteiit*
•tDdMiiaiM npmtlM birth or chiuteninf af
SBjckiMt'iajiiilwMMi beard of uy.
Bm« ariwi hnr «Am lady AUhan and aha
««Bl ia ta tha eaatt-kenaa ( my, hat once ;
ml Ind AUmm and Coar CoMaafb. cm.
wl bta eaart •ilk them. Being aibd iT
tha abatnad aay geatltnaB of the cauBtiT
Am Ihal Aa knaw; aaya, aha rewten
MM bMC<aarCakkMgb,«aq.aiidbaMb]r
MyUbaHBaddefOMMiB (ha eaart.hava.
Biw aikad if aba «aaM icedlaet irba wttm
«baiadnarthaaariaei «n,aba«aaMtttlL
Briaff^tad Mbaa bdy IUhb MAnnd ta
Mfat »Ti,lhalaltat«>dofihai— laeiaa
aha kmmi. BdMC aakad if aha «« Hn.
BriaeN ii Itamaiiie bonw, «r • daugbiv of
baPa ; aq>a, aba nw tbcm tbae, ud thattbay
Caae to DuamaiM after lady Altbam wai
there ; that tbey ati^ tlwre a gimd while, bui
befiem the daagUtar itaid the Uiiwnt, which
wa* in all about ihne monthi, aa ahe belierta.
BeioQ aaked if aba bcani ihit my Udy wbb
cooflnad to her chamber, at that time, or ibat
aba BMOUiied ; nya, the liaquently minted
her ladyditp at tlial time, hut oater knew ber
to ba eaafiaod to ber roosa, nor ever beard aba
ndaoaniad. Being adtad if my lady wm ia
iMiiiiiiiH al the aMixaa ; aaye, abe ma, bat
cannot uU wlvm it wei for. Being ^ad
whethar Mr. Caldon^ or tbe other gwtle-
■uiriieiawatthaaa(ixea,werein OMMnioir;
aayt, A» cannot (dl. Beiog aikml bow ihe
cnnetogo tolhe aanMa; Mja, ny lady Mnt
Ibr bar to go with ber % mya, alto knew my
Indy waa in Dublin twioa, and that my lord
went with her both timet. Soys, that the ae-
iwiartnn of ay lord and lady bappenad aboot
three ycara afiar my lady canM to Dunmaine.
Beiaff aakad if aba bncw Mr. and Mra. P^
gett; nya aha did, and that thoy bred at a
placa eaded lyatem ; aaya, my tord'
•AaacuMtodepooent'a boyae. ball
Mra. Cattarina laarfart awon.
am, ^ kna* thn Ua h(d AhbaM Md Ua
had a child *biic tba '
lenbeK, aod il«v«0M
was rory iulimate wiib, and I'requcMlj <iiiu4
bar; tbal depODcnt was at WatettbtJ si Us
"TTiflhi innra'iilna.h. an' iinlir"liini '
iri4, n«d dapanart aaad oitea i« no tad- j
■ratdBMd Ibrwaida belwMa Itoa and Vtm- i
firi, dtpa«Mnfa ftibar BriM at Waurfewl. ^ j
depeoMt hnriif Inlginp wore. BatagMb
ifaba,rimirimifaoaaparaiiioDofB^tad«f I
ah*«d, bntnciarlMil
( aya,al
bdy
itfadiild. _
bousr, and m avr* that no<dii1d waeotwi
ber in my lady'a tine { «nd di
was there after the separtUua; ai
viHled my lady at Rosa.
[Cnni- nunined. ]
Being atkeil if she know wbere bart»1
bind Mr. Lambert was io (he year irit;^ I
he was on DaUia daly , remembcra liut tany J
wdofadvp inall baatotc •'-••-■
Bringaabad if ahe hMwa
a^a,ab» banhMwhwi
Ibat ba ia aa ^ntdbr tba MMai
aakad wban aha aawUan laati mm,4
kim arary dnr, Md hw m^m tarn At
Being asked where tUMMiaMlwMiM
ahe baa lodged and tfataiwU. Mcll^gl
ait yeare past, and pnya Ut r — ™
her board and likdipstfa. Belngai...
■Ii>es not life with her^naband % mja, d
lived sFpataie Tram bim tbeae IS y —
ihetSiProer husband it a fit
ipon liis oaili, sod if ibo answer wbicbbilHl
11 to a Ull exhibited by her was a uue—aatf
mail's reputsiionai
BLid tliBI a wife in BOCt .
(reason, or for some atbec wicked d
Bg~4iDst llie wire herseir, can be •
&}{BiTist her busbintl ;* that it was
snaring quEslion, because as Mrs. L .
her husbauil were it law together, bwtlrtB
if il tbould prore in the affirmatif e. MoUf* K
juUice ber Tigiil, whereas if she kawsN'I^K
^ire a bad account of faia lealineoj. •**lw|
injure ba ku^Mod, which tbotaar-iwdA
Buffer, mneb leea cawpal, bar M 4k J
some debate, iheCoMtwaaafafiMl*'
wife might ba sTaminnd na to the cMM
her husband, b«l not an to UsEbtrtyia
eh.9,a^4. , _,
1»1. ofiaMa GhiiMia tn Mri^ lb
tf jMiaian n—inil bin •*»■•■
Iha Mwal IbMad hatan ihsMt jf iMH
»b«| 1 11 faMlMiHHMt
and Richard Earl of Angltiea.
A. D. 1743.
[IS78
f ; but the coDDtel for tb« jiluiitiff vMcd
liioliun. And it beinc atwiil dgbt o'cfork
ight, the Court irilfa tbe uinil coiiMBt, ia
■IK lign*"! by Ihv iwrtiei (Mid which %rti
in 0]iei) court) adjouracd to nine o'clock
moniJDg.]
Tridat/, Nuvembtr la, 1T43.
he Court h^*ing roi-t at nine o'cloek ae-
iu^ to ailjourninent, the Jury w«re called
, nnd anBiTpml lo ilieir DBcnea, and then
mmidmI ItM- ihe delendaot procecikil in tlieir
ninaiiun ulblluirs;
I Kerr iraj sworn to the Tain Dire, and
then ID chief.
be GAuniel far the ileteiidant said, ThiA *•
. Gitfard liad in her exuiui nation mcDtioQed
Iwly Allham wii* at Hie asiiiei of Wex-
wben Mr. Walsh aoil Mr. Uaalenon were
t, Ibey caikil Sir. Kerr to ascerlaiu the
> iheaaiJ aMizen were behl.
Ir. Kerr raid, Tlial lurd chief jiiatice Fonter
judge of that aisiio ; that de|raneiit wi
wa« frequentl; there after her tadyahip eame,
and apent more of hia lime in Dunmaine wbila
my lord and lady lired (here than at Rou ; and
aayi, that during all ihat time d«ponent neither
heard <>t bdiefed that my lady waa with child,
and is eoniiaced in hia conacience ahe never
had a .child; and if any anch thing had been,
hia great intimacy and continuance
iDily. Saya, that four or (ire daya befbre th«
Kparalion, as m; lord, Ur. Sultoo (the aor-
geon,) Mr. Taylor {my lord'i receiTer,) and
deponent were cummg home trom Burtown,
my lord told depooent be waa determined lo
part with his laily ; and upon deponeot'a a*k-
ing him hia reaaons, my lord replied, I Sod
lord An&leMa will not Lie in friendship with ma
while 1 lire with this woman ; and since 1 hara
no child by her, I wilt part with her. To which
deponent made answer, Hy lard, you may do
what you please ; but I wonld not part with
my wife to please any body. Belierea, that
Taylor and SuUon bad laid a scheme againat
de portent, and brouirbt my lord inlc it ; fiirde-
N«led h.s clerk alter the deal 1. of m een , ^ ,^,, ,^f, ^j, » „^ ,„ j^„^ ^,
.. and went every c.rcmlw>th him hatha .i e. ,|,i„ h-rd of^ -■ '-
Ir. Walah and Mr. Mi
■«i, fur enlisting men for foreign lerTica;
lilwaalbespriag circuit in 1715,
[Cross- e:(amin ed . ]
Icing asked, if be remembera toy woman
lethal he knew ; says, he does not. Being
ed, if he remembers any ladies of disiioc lion
re ; saya, lie does nut. — Says, he has looked
la news|ia[ier publiabed by Mr. Pue, calluj
!*■ Occurrences, wherein tbe urcuita are
ied, to know what liiue those Bsaize* were
1, and he found tlie^ were held the JGtIt of
il, 1715 ; Ihat the JUiIges went tu Wexlbr '
>be Saturday ; and aajn, my lord chief jui
Porater aitended on the crown side ; that
first town they went to, ihat circuit, was
a, where Mr. Justice Coot satnn the croivn
• Being asked, ifberamcmberg a cleri^y-
I lobe tried at those aisisei; taya, beikiea
Nmcmber any sncb.
Hr. rAoniMP«f/iirr,juD. sworn,
ajs, be wB* acquainted with my lord and
! Allham when thry lived at Dunmaine ;
deponent was then very young, but cannot
What age be waa of, Duly that he went then
dwol in Ross ; that depunent's father and
ber then lived at the Great Island, three
M from Dunmaine. — Says, be was fre-
nQf bHween his father and lord Allham's
■•; believes he was acquainted with my
when be first came lo Dunmaine, and be-
m^ lady Altham came, and used to
I With my lord, and he fnrnisbed depo-
t with hones ; and rays, bis lordsliip
W fraqaently. — Says, he does not b«-
B it waa repotted that lady Allham was
a cfaild ; retneroben my lady ctme
^ won timo in 1713 ; and oepotKot
line, they beard ot it, and were determined lo
ne revenged on deponent ; aaya, that on the
Sunday morning rav lord came lo deponeot'a
bedside, and waked him, and deponent remem'
bera he had dreamed, a litlte time befbre, Ibat
my lord had put out bis eye ; and my lo^ de-
aired deponent to rise, for that he was gdsg to
church; apnn which deponent offvredto go
along with his Innlship, but he raid, deponent
muHt stay at home to keep my lady company ;
to which ilepoaent replied, tliat Taylor and Sut-
ton Here at home ; lint my lord said tliey were
not fit cumpaii}', and insisted on deponent's
.u.. .w... ~. ataying ; and told deponent, that as he was to
tu Wexford i huut the next morning, if deponent rid bis
horse that day, he would not be able to carry
him, and therefhre deared deponent to stay and
breakfast with my lady, end then his lordship
went down at
That deponent accordingly
my lady's room, where he had
nfleo breakfasted before. That deponent, hav-
ing been some time with mv lady, heard a
noise, and presently my lord came into iha
room with some of the servants, and having a
drawn sword in his band maileatfarustat de<
ponent, and one Anthony Dyer, his servaBt,
took the sword outof hishand; deponentbdng
then hurried into another room, one of theser-
vanttcuta piece off of deponent's ear. (And de-
ponent took off bis wig, to sbew in what man-
Per hia ear was cut.) That (upon the oath h«
bad taken) he never attempted the virtoe of lady
Altham in any respect, and tliatshe waa in -
lirely innocent with rrapecl to him i and nys,
that at the time he received (hat usage there
was DO child in Ihe room, dot did depot
usually
leponeot
I any child in the house ; aaya, my lady
brokfasted in bed.
[There being such conlrvdidbn between Uiis
witaai*i tmimoDy and Jean LaAo's, who
1279]
17 GEOUGE II. Trial in Ejectment belmeen J. AMttl^y, tsq. [ItSB
le paintLil lo tba blood uf Mr.
tad it beiu),' Biiprelitmiled Ihat
JnsD LiiSuii Uul uiil thai llie ear wu cut olf ;
whereai it appeareU it was unt, and that unly a
kjtece of it was cat off: the Court unlered Joau
LaffaD to be called, ai^ tbal ilie re«|)eciive al-
tuTDies ibuulJ ^ 10 liur iinmeJialcly, tnr fear
t>f lier being tutored preCiuus tu bet wmiag oa
Uw table.]
Hr. Palliaer was continued to be examined
till she appeared, ii folloH'S. Beini; asked,
wbat serraots were in the bouse at tliii lime ;
•aya, he remembers Aiilliony Dyer, aadt^liartes
IjalTan ibtre. Beiofr aiked, it' lie saw nay
child in ber arms, ur in the arms at' any other
person lu ihe huuse ; sayi, be ntver saw a
cliilil in Joaa Laflon'R urm.i, or ia my liicly's
arms, or in tlie flrui'ol'aDy servant ut' the
house. That Ueur;^ Sutton, a surgeon, at-
tended Ihe hmily while he was there ; that he
was a !(nuiy roan, but does nut know iHie was
reported to bleed well. Bnn-; asked, in what
■latioa LnOiin was employed, and what hisopi-
nioD of her ia; caysiiiie iiseil to wash llie par-
lour, and tHkes her lo be a vile woman ; and is
kure thai nut a man in the couutry heurd that
luily i\llham had ■ cbilil. Ikin^; asked, what
cltarairlcr Mr. Elms heurs; suys, he would
venture to alBrm that Ihete ii not one ({rutle-
niau in ibe country tliat would t;ive Mr. Eldts
a bail cliaractcr. ihtitif; asked, if he ever heard
thut Mr. Elmaranawaj niththe|iubllc money,
•if ivliich be was appointed collector ; s:>ys, he
iiurer heard any auoh tiling.
[Cross- examined .]
Being asked, wbeUier, when my lord Al-
thaiii (laried fioiu my Indy, then- was any
frieudshij) between him niid the late lonl Aii-
Iflesca i says, he knew i,:' no enmity between
llieui. tiays, lie beljuTcs lord Althiim called
deponent out of bed iu order to execiiiL- l.'js
trirkiil ]iiir|M>(ie a^^ainit my lady, his lordship
taking: i I tor i;rautnl, ihainbcn he was ^ne
from the huuie dcpunciii would f[o into uiy
lady'aniumas he usually did, fur the )>ahe uf
conipnny, and then u|ii>u'hian-iurii liiHlioi; him
ibere, aft Iw expiivird, made Ihul a giri-teuce tiir
parting »ith her. Snys, it was only a piulencc,
lor Ihat liir tlie miisl pnrt dcpuucut used tii
breakfast with her lailysUiii by my lord's oun
direction H.
[Joan LufTuii bein^come iii)on the table, a
GOiiiphint was made by tl>e dL'icHdjiiit'a a<^ctil,
tlial {\lr. Annitslcy's servant was louod sjicak-
iii^ lo her, nhercujKin Ihe said servuiil wsia or-
ilereil lo be sworn, and called ui>on lo di-clare
what lie bad saiil lu her. ileini; >ccordiD|;ly
■worn, be oidy bsid, ihat he told lier, she wan
tent tiir by tlie Uoiirr, and thai yeung Palliser
was then examiuin^;, end that ahe aoawereil, I
don't care ; if I go, they'll gtl nothiag by it]
Join J jffiB haag diractedbjifac Coufttn re- 1
peat the accoiiol she bod before given oTtbrw-
paration, and lbs occasion of it, sayi, tLat Ui,
Pjlliser behated very ill to Ibeaervanti ; ibuk
put some borse-jallaji into some of tba>dri4
and used to tell ray lady lica of ibeni ; b
which reason he waa so Utile tegaiM k i
them tbal he was forced to wash bisownNi^ i
iuga ; that my lord laid a plot agaiail hm hi J
some of the servants, and made Anibsnt Djs I
and the other strranls lake an oaib of kcmjj
that on the Sunday.morning there wuifa
onlered in my lady's room, «od my Mf»
tended to my lady that ha wai oblind tcpM
to dinner; that &Ir. Palliser bmkfMi/ni
roy lord, and they had a bottle of malUsii
for breakfast ; Ihsl as soon as my bd in
g^one out, Mr. Palliaer went intu irv Ufi
room, and the plot having bero Iwd M^t
Mgoal was made which brau^t my liri M;
Ihat my lord run up with hia swurd. lal M
him broocht out of the room, and therm
came tu PaUiier and aaid to him, li lliiii
way you keej) my laily compsoyF Juini
out a cate-kuife in order to cut his D(iM,kli
was ordered only to cut his ear. Tliil4»
nent nus slandiiig by iu ihe room, aiiil>bty
the child in her hand, and he shcval
blood fliitof Pulliser'aear; says, ilml
part of Uie car that was cut ; snd tin
lAiinled at Ihe lilnod that came nutofibtHL
Says, that Palliser was found in ibe '
with my lord's silk nighl-cap on bit boi
bad bishal and wi|( ua at breakfiit. !i^
thai « lirii hiT lailyElii|i breakfasled in liir 'M
di<)Kiiietit utU'iideil her ; but whtn slie i-i^-if
fiiKted ill the uarlnur some of iheniherKnas
did. Sjys, that ii» man was ptiT mill' '
herbcd i'uom lu breakfutt. lii'ia£ vi ,
lime «he cameiutu the Keriic, anilbniiil
the child whs al thai lime; s:iys, tii
with colonel Uenn when kin;; Ceurgei
Ihe crown, and that she came inin n,
service iu 17 1 J, and tliat the child hm i<^
aliout Ihrci' mouths old, and hassteuMcF''
listr often pl.iy with hitn.
Mr. Palliser being asked, if licsiw sci'il
in her armM; saya, be did nol. Uui ^
Lalfdii snore he did. And she tartber)''.
was ahoiU harvest time that she cimeii^'I
lord's service.
[The Court said, that Laffan bsd !"'
thing contrary to tierlbrmerleMiiiifluv,
she had only explained w hat sbi- mtsiii If *"
ear's liuiiii,' 'cut in her first eMminii!'H>''|J
declaird lhi:ir hiiqirisc at the cantnilKiM«<
the cvidcnirc on butb siilea.]
Mr. J'allittr continued to be cro«s>eii>UM
ISeiDg nskcil, if he believed ray lod "^
have run him lhriiu};li if he bad nut ^''"^
vented; says, |H'ihaiis he might liaie"""***
Lim, fur he directed the sword lofcl"'*"
Crson. Itciu>; asked, if lie ever m» *^
Ifan attend iiir >ndy albrcakfi^; o^L
Deter did i il.at it wasMrs.Ucaili.aksiWf
UtendcU lierj for that my luly wu *^
]
and Richard Earl ofAngUsea*
A. D. 174S.
[1288
ID, and did not love to bafe low iser-
aboiit her. Beinff asked, if lie ever
fasted Im*Iow stairs before with my lady ;
be did, and was freqaenti v desired by my
0 to do. Says, he breakfasted with my
lereral times tlie very week before the se-
ioD, and my lord knew it. Beiui; a&ked if
J not tell my lady of my lord's ioclination
t with her, considerini; how intimate de-
t was with her; says, he never did. Bein^ir
if my lord ever applied to deponent to
up tiie difference between them ; says,
rer did. Being asked how many days
before parting tliat he had that cooversa-
'ith my lord ; says, about four or (ive
but does not remember what day;
Lbat Taylor and 8utton rode before my
IV the time of the conversation, and
'dship seemeil melancholy. Beionf asked
lord ever talked to htm before that time
that affair ; says, he never did. Beingf
where he breakfasted that morning;
in Sots- hole, and tliat Taylor and 8utton
asted with them. Being asked what the
iaat was; says, he believes there was
1 wine for breakfast, as the woman
n) said: Says, he generally used every
igf-match to call my lord. Being asked
cap he wore the morning of the separa-
nd if it wa4 a silk cap ; says, he does not
ivhat cap he wore, or if he changed caps,
ilieves it was not a silk cap he wore.
asked who used to take care of the
believed itmi^lit be Joan Laffan. Being
where my lord used to dress ; says,
stairs; says, he knows nothing of a silk
cap, nor what night- cap my lord wore;
\ not the laundry- maid; but believes
Laffan assisted her. Says, Taylor and
I usefl to drink late, but my lord did not.
that he often breakfasted with my lady
my lord was not with her. Says, my
"enerally was in bed with nothing on but
e gown or wrapper ; but the maid was
Uly backward and forward in the room,
aows not but it was by directions of my
Being asked again what sort of cap he
that rooming; says, he is not certain,
lieves it was a linen cap, but is jiositivo
was no child there. Being asked if he
one Mr. Briscoe, or his daughters ; says,
«8 not, but remembers to have beard of
lias Briscoe. Bein^ aske<l what steps he
o resent the usage he had met with from
rd Altham ; says, he sent him a challeni^e
at morning, and i»osted his lordship for
eeting him ; and that his father likewise
nged my lord to fight him, if his lordship
ht deponent too young an antagonist.
my lord went out of the country soon
ted deponent pursued him out of town
^ilQls. Being asked what time my lonl
• coimtry ; says, he does not know, but
B be fell it in 17 17. Being asked whether
K MM raeeiTe several blows the morning of
Vrntfam s Mys, he did, and fell down and
AHitd wiUa iIm hlowa. Says, it was
^I^ ZVlf .
Anthony Dyer that took the sword out of my
lord's hands. Being asked whother he ever
saw-Mr. Pigottof Tintem at Dunmaiue ; says,
he never did to his knowledge, but remembers
to have seen him at his father's house. Says,
that when my lord came up to deponent that
morning, he told deponent he was going to
Tolnam Green,i but that deponent should not
go with him. Being asked how he came to
tell my lord, that there was Taylor and Sutton
at home to keep my lailv company ; says, that
Taylor and Sutton used to dine with my lady,
and that Taylor was a kind of receiver. Says,
the occasion of his going into his lady's room
that morning, was to carry her a lap-dog she
was fond of, and swears he did not go with any
criminal intent.
Thomat Ralph sworn to the Voire Dire, and
then in chief.
Says, that he was very well acquainted with
my lord and lady Altham ;»tliat he knew my lord
first in England, before be came to Ireland;
that my lord came to Ireland before my lady,
that they came to Dunmaine a little before
Christmas 1713, and deponent was in the ser-
vice before that time as butler, and continued
tliere till the latter end of 1715, and was about
a year and a half servant there. Says, he
never heard that my lady was with child ; that
deponent waited upon her twice a-day, At
dinner and supper, and never saw a child at
Dunmaine, nor ever saw any signs of my
lady being with child, nor ever heard any dis-
course like it, bnt has heard both my lord and
lady wish they had a child. Being called upon
to name those who were servants with my lord
in deponent's time; says, there was John
Weeden, the coachman, Bork, the postillion,
Michael Forster, the cook, one Arthur, the
gardener, Martin, the smith, one Anthony
Dyer my lord's gentleman, who used to attend
my lord except of hunting days ; that there was
Smutty, the dog*boy, hot he was very ugly ;
one Joan Landy, the kitchen wench, little b»ck
Nell, a weeding wench under Arthur the
gardener, one Mary Hays, dairy maid, and my
lady sent over one Mrs. Settright to be house-
keeper; that there likewise was one Mary
Waters, chamber-maid, and Betty Doyle, a
laundry maid, and Mrs. Heath, my lady's wo-
man; that afler Mary Waters .^ent away,
Nelly Thomas came in her place, and she usetl
to carry the tea-kettle to my lady's chamber.
Being asked if he is sure he would remember
Betty Doyle; says, he is sure he should re-
member her. Being asked if he Mver knew
one Joan Laffan to live in the service ; says^
be never did ; but says, he letl my lord's ser«
vice in 1715, between Miohaelmas and Christ-
mas. Being asked if there were any new ser-
vants came into the family while deponent was
there; says, that when Waters went, Nelly
Thomas came in her place, but remembers no
other servant's coming there. Being asked if
he knows any thing about Joan I«anny ; says,
Joan Laody was turaed %.*«%>) K<a \Msca.<^Ni>i^
4N
rfM want fat k oottMa, «r fint of hw fcaw*B at
lh« ritMp mlk, Bd than ifat'wn hoagbt M
bad| tint it MM abtM a furioBK wU a halt
ftvM PuMMrfiia haow. Sf n, In oana tB
land ma Iba aeifie% aoi >Me in tiM
na la dtinnent, to his bouse, in iltrjr Ic Kn
Sp^ttti, find aent a diutiei Iherc, M^n-
■d fepaBftit 1» dine villi hi lu, ami Mke4kii|
wal fMMioDt, nlielUer Udj Altbint badi
Id, wal wliBl pervantB were in the heuM a
dafonaat^ time, aud asked deponcDi if b
wbdM aflcayt of > iieuiepaucy : aaySiUieKwai
tm ganllaaea with Mr. H'Kereba, «Dt«f
wbaw dMf called sir Tbomat; tbat Ht
H'Karobar came there a s«c«ild tine, Wi
iilnd dtMKnl ir be had aaid any thing w ha
|>I1 » Bauleiiancy ; and deponent oamc^it'
■iwina, «li^ b» aaid, were ia caaipaoj ata
Mr. H*SMabfr CUM there the second
fi«nf MM wbU hniaecs he rollowi;
bail a (prdaoar and vicUiftller, and kuM
part af bia firdoD M ao«M genileiuea liirfl»
'- -'hi flowers. Beioe uked if bt »
lard ucl Ud J Altbain gaiag U »(»
lonl aaHMa >t odv time; sayi, tsjlMdiri
Uy, Hn.Gifiard, Ure. HeatU awtdtpM
.1 — ^ ibat ADlhooyUyer wtaaMlkk
- was sick i)ihaijt waaattlwMf
MMorgupdi. taja. (hat ia. twa ar Jkraa
daja dl^ Joaa 1^ ma branclit I* bai, da-
fanaatveatto tta haate wbavtbemi^-W
•MMk aMNMrtadaaTlaidlhhaairaa Ifca
iiheraf bwtUd, and dwaaaatteAtha^M
ta bta aiw. ta aaa if ka oaM Sad MM who it
llwlik^aBdadMdharwboahakidltta,apaa
wUdt iba aid, ta My load i '^manaat toU W
abawaa ia the right «ifit,ft«lfafihidywM
batttraUatanAahitt •adiaji.tenami
«r bia looking ao at thaehild to iad whaba
was Uka, wB, tliat hakaew olben hadjainirith
tbe diiU'a mother. Saya, In hai aaaa the
flf^ tiroea, aiid oaed ts aJTeil
I. -Bmaq a^ad what kiad of
itilwaa thatJoaDlandylivad iB;aaTa,it
ta» litllo bnt, and aheby where her fatber,-
Bthar, and brother, on onma airaw, all taga-
, aad ibers were ctakea drofe into the
gtauad to keep the atraw np ; that it waa all
oaa icon, and there waa a &re-placa on the
left-band, hot caiUMt tell iftbare waa a ahtBHqr
in it, Saya, there waa no paniUon, but a
bordla Axed to Uw greund to baaf OR tbe
Mnwi wdaalaagaaJepaneatliwdat Doe-
mniat, tkeekUd Imd Ikero witk bit maOm.
8aya,4ha baidle waa abBatftor or flf* fitot
bigb. 8aya, that when be cnaw into tbm
room, be had a fat) view «f the houae, and thai
there waa do window lo it, and neilber chain
nor table*. Says, the cahhin waa in the i
condition when deponoit lirst went there,
waa when deponent left Irebuid, aiid ia
there waa aoalleration made in it, Ibr if there
bad, depOMnt ahould hare aeen it. Being
ariced how ttw okiM waa dreaaed ; aaya, he
wasdreaaedio a blanket; that deponent oarer
•aw tbe child at DuDmnina houae, for it waa
Beret auffered to come there. That lady
Althain bad forbid JouLandy to come d"
Ifae houae, as be auppuKi, becanae of tbe
rt of it! being my lord'a child. Being ad
lady Allham ever went to Latidy'a c^»bin
uort of it! being my lord'a child.
•if lady Allham ever went to 1
or bnt ; nyi, ahe nerer did, for that abe was
too proud to go to inch a poor place. Being
naked whobvilttbe aaid cabbin; aaya, it waa
bailtbyone Shea, a year before the child waa
bom. Baiog asked when it waa deponent
came to Dunmaine; laya, be came m Ouo-
maineaoactimeinlTU. fieiog naked if there
waa a road from Dunmaine houae to I^udy's
«abbin ; aaya there wa* a ouacb-road down tbe
avenue. Bnng aaked if tbe aaid coach-road
waa made on purpcae lo ga from Dnnmnine
bouae to the cabUn ; nya, Uia eoaeb road waa
Madtt a year before tbaMfabin waa' I
Hrpoae ta go to dturak, to iba aMlL
IWliaer'a. aad Mr. Omuf^ mi4
aMseaia itu
aea w«*fa-ied;
I Ibiog, that be
Saya, Mn. Heatk foda ugK ■■
aoBotii, and Hra. OiiBrd wvat «l
latbecaaeti. Bdng aake^ bow
laan miy lord'a aertice ; n
maa di^al" with the garden
walar iaia the gsnieu, deponent k.
apaa wbM he went tu Uublis, jll
wd tbaa woe) and complained tolu"'
lord sent a letter lo Duamoine, Uv
send dapogeiit lu Wexford gaol, lidfl
opoodepooi-iit quilled the ic—— —■'^
Euglacd; huys, my lord ^ . _
May, ins, end lIi>iE my lonl bdhI laJ} n
Dublin when ilie queen died. BeiM >M
what time of tlie year it was h« ™J' ^
gardener; iujs, about Miebaelmu; lU"* |.',
ford and lady were in Dublin before ibcMt ,;„
but depoueciiliduot Hay for their comirt*"^ |^
Btno^ aikeil, ^fho christened Jcu ImP j,
child ; sayt, he liaa hennl he waschiidaiif
one Downs apriesUatatillaeecalMNiA*
Ihat be wac called James. Being tikA v
aooo alUr bis liinli he was cb liateued ) a}V|
cattnot tell, lor deponent waa doi lij
chriilening; but the child wu alm^l"
James, and deponent nefer beard bia *
by any oUier name.
[C roet-examiaed.]
Being ashed when it waa be <
army ; aajii, immediately after di,
to Brwland, and deponcut waifl.
Hyde-Park. Being aakcd wb« k
my lord's *crvice ; saya, in 1711. ■
wntinaad tliere for a year acd a haK
D ladroaiBaiDi)uiunaia& Bdng m
r< abUnaiaaMad tabakla. aa>
aitrl Richard Earl of AngUtea,
A, D. 17*9.
[1286
^
would ia Ihe ilei'endanl's cause
Being Bskcil if there was ddi a
^^(le to Iha liome whf re llie chilJ
ecMch-madledroMr. Fnlliapr'a
il'a. Being luked if Klra. Gif*
me bj thut house (n DuHRiaine ;
t eoBBlantly rame hy that house,
I ber onreat m»i\, anti thai ihe
Mioii liy tbe bridge ; and saya,
) rooH waa iLe ahonral way to
, end the usual rosil ; ■>]'■, the
I RmiB tras built befbre deponrat
mys, Mrs. Briacne and her
not come to Duiimaine » ill) my
e time ofW. Beinsf axked hoiv
there were to the chariot in
dy went to Wexford aasizea ;
nere «tx hones. Being asked
horse deponent rid ; aays, it
Oroe. Beinsr aaked, if he knew
da ; says, he did not. Being
kg Baked, what day uf the waek
wre held at Wextbrt); laya, be
aday oflbe weekor raontb; but
'' two or three days. Being
rd and lady lodged ; aayii,
rlieretheyloilgeil; that ha naa
feing all the time of tbo niKizeg,
Mgcd at the posl-oliice. BiHog
ferd and lady were in motiming ;
M tdl. Ueing asked, if he ivure
W, he never di<l. Being asked,
"d when he went tn England ;
Being asked, what ten
' lord to Wexford ; says, the
^Edward MTormuek, tlie coach
"" and my Inrd's gentlemai
^ diked, if he did not attend
^ hn alay at Wexford ; says, he
Walked, if heeveraaw^eSjiaw
iK^ord ; says, be ner pr did, but
Ibem ; aays, my lady wai ill Icir
rht, while deponent wai in the
■I not keep her raom above a day
le was tny lord's clerk,* and his
tford waa to carry exnminaiions
the clerk of the peace ; but duci
re he lived. Being aiked, how
ly lord's senice ; anyii, he had
bree years a house-keeiier in
lord Altham owing him sune
over here to tutii for it.
what agreement he made with
n the *<
; saya,
at, but my lord told bim,
^ life with him, as hit butler, he
\ Wya, my lord had little to pay
"-^ire da^ioneut neter demanded
f*, my lord otrgA biDi near
r Bebig aaked, if mv lord nied
(hatlUDled olien, ihal he had
«ix or (even honei for his own riding. Being
asked, what coloured horse my lord used lo
ride B huDtiitg ; says, he had a black marc,
which he used to ride. Beiii^' asked, if
Anthony Dyer used to go a htinling with my
ktrd ; "aya, he did, ih.it he used to ride ■ horsa
called Forrest, and aomelinies tny lord used to
ride tbe brono gelding, because it waa ilie
better horse. Being aaked hin age ; says, be
is sixty years next July: that my lord came
first from Wexford lo Diinmaine, and aller-
wardt went to Dublin, but deponent never
travelled with bim to Dublin : says, he does
not remember Charles Heaglier to oe a aervanl
with my lord. Being oskrd, if he ever told
any bod v that Ihe Preleailer's men were tried
at the assizes at Wexford ; aays, be bus »pohe
of it many times. Being asked, on what
otwasion he inenlioned it ; says, be lold it to
his comradeB by way of conversation. Being
aiked, if he told it to my lord Anijiesea ;
he does notremeinber Ibat beever did.
atked, if he ever told it to Mr. Jans,
Burroughs ; says, he cannot remember that
lie did, or to any of my lord's uanagen.
Being aaked, bow many came over with depo*
nrnt on sbiii'board ; says, he belieres about
iDrty. Being naked, if be lold it lo any of
liieno ; says, he dues not know of any of uien
thai he lold it to. Being aikcd, when it waa
he last saw Mrs. Giffard, and if he bad any
discourse with her about that affair ; Days, ha
saw her yesterday, bnl had no discourse witb
her; nor does be know what she has been
Oaen Cuvanagh swo:
then
Says, Ihe defendant owed him
whicb waa lately paid him by I
Mys, be served lord Althatu if
13/. I5f;
Derinaay ;
Dublin, and
wanlii at Dunmaine, and was in his service
belure and after my lady came there; says,
(tut having been at his father's after a fit tif
sickness, he went tn lord Allbam lo ask fur his
wuiies, ithen ray lord preraileil uu bim lo hire
agam ; that some time after he fell out wilb
ihecuok.and my lord threatened to send depa-
neiit 10 Wexford gaol, and Ibereupou depunent
parleit with him. Being asked, if be was
servant to his lordshiii after tbe separation ;
«i\s, be was not. Being aski^d, how long he
continued in the wrvice after my lord and jady
caina to Duiirauinc ; says, about a year.
Being aaked, if lie renicmbers tbe deatli of
king Oeurge the 'First ; aays, he remembers
beiirg in mourning for him, and depunent was
then a hQUS(>-kec]>er in I'bnmas- street. Being
asked, if ho rememben sir Constanline Pbipps
in Ihe government ; says, be does not, nor can
lell whtrre dcjionent was at Ihe time of Queen
Anne's death, but believes be was in service at
Duumaiiic ; ssys, be was in Dublin wliuu my
lord receiied my lady ill Mrs, Briscoe's
Briug iisked, if he conunueil in ihe )>errice (ill
the umc they returned to Dublin from Don-
uiatoc; aay*! he does nit wnwvohiw ■Ct>».^«.
I
■
i
«
m
1S87] 17 GEORGE IL Trial in Ejectment between J. Annedeg, eif. [U | B
dill. Being asked, if he ever heard of my lady
Altbam's Gsing with child, or that she had a
child ; savs, he never did, till the late rumour.
Beings asked, who were the serranla in his
time ; says, be remembers my lord had a big
fat steward (one Taylor) and bad a cook that
used to drink and sing. Being asked, who
was the butler ; savs, one Bolph, and my lord
had a page (one Anthony Dwyer,) and one
Mrs. Heath was my lady's maid ; remembers
Joan Landy, a chair-woman. Being asked, if
she washed the dishes ; says, he cannot tell ;
says, she had a big belly, and was supposed to
be with child ; and afler my lady came down,
some busy body (as deponent believes) told her
ladyship she was with child by my lord, and
thereupon she was turned off: Says, he saw
her afWrwards, when he used to air the horses,
and saw a child with her who was called
James, and deponent believes it was the child
he saw her big of. Being asked, if he ever
was in the house she lived in ; says, he has
been within side of it, that it was a cabbin
built near the kheep-walk, and James Landy,
jber father, was the shepherd. Being asked,
what rooms there were in the said house;
■ays, he believes there was no room but one,
and there were two straw-beds in it, and depo-
nent remembers the building of it. Being
asked, if he believes the lady Altham would
have been ^lad to have had a son and heir ;
says, he believes she would to disappoint the
present Earl, who was always quarrelling
with her. Being asked, if be believes that if
lady Altham had had a child (while deponent
was there) he should have known it ; says, he
believes he should; says, he saw a child at
Incliicore, but cannot tell whether it was the
same chiM he saw with Joan Landy ; says, he
asked my lord why he did not send that child
to a trade, and that his lordship answered, that
he was a great idler, and he could get no good
of him. Being asked, if be knows of any
child's being at Kinnay ; says, he does not.
[Cross-examined.]
Being asked, when he was married ; says,
in 1719 ; that he shewed the certiflcale of Lis
marriage lately to his wife ; says, thei'e was
great rrjoiciiig among the servants, when lord
and lady Altham were reconciled at captain
Briscoe's.
Anthony Dxcyer sworn to the Voire Dire and
then in chief.
Says, he waited on lord Altham b or 6 years,
and his lordship lived at Dunmaine when de-
ponent came to him ; can't tell uhen my lady
came to Dunmaine, but de|ioneiit was in my
lord's service bi'fbre her cuming, and alter her
going away. Being asked, if lie is sure he
was ht Dunmaine when my lady came there;
says, he is sure lie was, and that he lived there
2 or 3 years after her leaving Dunmaine, and
was in the service when she parted from my
lord; says, he attended my lord when he
«^me to Dublin, jand never was abaent froin hia
lordship above a fortnight at BMrt. \m Cil
asked, if he ever knew my lady wuiillidhlj; itl
or bad a child ; says, he never ilid, lili liii lii
this year. Being asked, if be wnnihnti ril
names of any of the servants; Kjiihc^
members the names^of some of tbni: Mi
Wheedon was coachman, Mrs. HeMkvii^
lady's woman, and Joau Landy wnkifeki'
maid under the cook, and coDtiaacd thoilt lit
two months, till she was turned iivi|i !• p
she was with child when my Isdy cm I
Dunmaine, and it being repoiled latt Aew
with child by my lord, she wutanedolrf
the house, and went to her fatber't,.wbiM
in a cabbin near the lands ; and ^xfnakm
the child in about a fortnight after kcrMq^
and the child she was delivered of wm oil
James Landy ; and her father lird ii Al
dibbin aflter the child was bom. BMf «hi
what sort of a cabbm it was ; ia)i,itMii
very poor one ; that it was all one ra«,iii
no glass window in it ; that there vmiIiA h
which was pulled in and out, iostetdtfitei li!
that there were stakes drove in the giwiii |lt
the cabbin, and straw beds. Says, he iM
purpose to see the child, and that it •*■■
m a poor habit. Says, he nevr n* 14
Altham have a child or handle a ckiU; ki
Joan Landy used to come by stesUbtbew
way to the stables and bring her cbiMiairfB
to get some subsistance from the lMtlff|ii
used to say, she was always afraid, beaaia
her having fathered the child oa BfM li
Says, he lived with my lord Altbaawg* |t
separation, and parted from him is W»
Says, he came to Dublin the tiret pwlu*^
aft<»r my l(»rd and lady parted. Styi, J
Lalfan was a servant in the family i^bto^
iient was there ; but says, she could Mthtfi
tlie rare of a child without deponcol's bl»"
le<lge, and deponent ne%er saw a cbiU nW
arms. Says, she lived 3 or 4 moDlbs iiv
service, to the best of deponent's knuwldl^
Says, he never saw a christening al D* ]
maiue house, or any bonfires there onaD\iw j
occasion. Says, he has seen Mr. V^o)i^ ■! '
lord's chaplain ; but never saw him cbriiWj
child, <»r h«ard him say he had. ^>*»/f
never iieaid that Landy 's house was refiiirt"i
or a road made to it frum Dunmaine bouse ;W
savs, ihe;e was a road made for a ^^'^
1 through the land. Says, he knew Bolpbw
hiuler; and that he was succeeded by*
Charles, who was hired in iov%n. Beinga***
ifmv lord made deponent take any <wtbiW
Mr. Tom Piiiliser ; says, he i.everdid; "J
was anv oath tenderedto him. Ileinjj ittW^
if Tom' Palliser misbehaved to the ^^^\
K»}s, he never found he did. Being vM^
ht'ever heard that Mr. Palliser wasiirtlb'Vf
Kiockings ; says, he ne*er did ; thai I'** JT
sort of servants were resjiettlul to liiui. *JJ
he has seen my lady breakfiibt jn her fst*i*
never saw lier breakfast in bed.
I^Crots •examined
B«iiigifln|l,ii'htW«lMi
and Jlichard Eari •/ Anglntn.
^Hn> be » ; •■)'*( U« oerer suw a chiM
HMeof DUDUMLiie; tlitt lie cuotiiiued
lylord tfUt the seiwaiioD, aud cnme
hn ■fierwanis lo [ikrliomeDt ; an<l ihal
«l vtaid three <|uariers d1' a year ni Dan-
■Act ||» ■eparalLUD. BciiiK Mbml his
■a;ii he ii between 40anii 50; liei^ves
4.t. Beiaic •sbed, ilJosD Laflkn wai in
use alter ihcieparalinn ; myi, lie cannot
•ly uy, but to ibe best ol' bis knowledge
«■ ahe was, but cannot lell wbak baf»iiie
■r itler ibe aepkiraliOD ; myt. n>y loril
U Dublin in parliament lime, hut
Ull wheiher it was parliameot winter or
bea tbey parted. Haya, he (»uld not
hutiruetoy lordcameln Dublin kiter the
itiop, but btliere* it was summer lime.
he wBi lick when my lord anil lady
toWeiDird a^nzes. Bdn^ asked, it' lie
pm ill cumpnny wilb Rolpli aince he
jut to town ; says, he has, and thai
I eimetniee him ; and ihai drponenl lay
> Jauii'a tbe tint and kecnnd night aflei
sayl
heh
with Itnlpb, anil that they conned
>ld jokea and marriraenta; \m\ nni a word
Mid ol* the boy, or of the Wrxlonl
<■, nor dill drjiuiient ever tell any bodji
ha bail to sty in this aflTsir, fKCvpl tbit
U Kolph, unri Knlph tobt biro my lady
bad a child ; lays, he haa •een colonel
i«r, anil seteral oi'bnrs iif the defendant's
saei imce bis comii>ii[ to Dublin. Brinif
if he ever heani ul' Harrv Ihe t-ouk ;
be never did. Beint; asked *il' the cahblu
B Joan l>an<ly lived was huili indeuonenl's
I taya, thai it ivaa, and thai my loid had
400 iherp un ihu sheep walk. Being
I, bow old Jugtry I^Ddy'* child wa^
faeanw bim lajil \ says, he nnnot lell,
iw him in n miinili aticr hia binh ; and
Jue^y Londy used lo Icare hiin wiili
of ilic lirlpem at the stable when ilie weni
Ike haute lor Gubsis[aiti-r.
I. Mary Iltalh swam to the Voir Dire.
Do you know llie pUinlilT, Mr. James
ikjr— Mrs. W«(/i. No.
M he any law-suit wiib j'ou? — EIp 61ed a
piaiDst me fur ihe ttTi-cts of lady Altham.
la aubiKena give u <i<e in England,
whoaeiuit.'— Al Mr. James Anuesley's.
tee you any of Ihe eflecls of Urt; Altbaiii
Ur linnds F
le i|ue*iion is ubjecled tn by Ihe ilefuidant'
Ml, who wy, tliBi the admiuislrator will
Ihe ri^ht to recover them, tei this ca
hich way it will ; and ihe eRvL'la an!
rebtice to ihe real eilate nhicb is non
lte.»
1, Ibe followini^ i* llie ac-
Triol at Bar," Sic. :
' tlic plaiDliS aiid, it ap<
T of llie plaiutifT was uui
Udy AlUiaiudied; iliat
A. D. 1743.
Tile Witness sworn in
them ^^
Did yOD know Arlhur late lord Allbam
and his lady ? — Mr*. Htath. Yes, very well.
What time did you first iMCome arajuainleil
with the oneorolherof tliem f — I have known
Ibein a ([real many years.
Were TOU in any service in thai family J —
ever till Ibe lime nf my cominor to Irelaod.
When was thai F— Id the year 1713.
At nhat time?— In Octolierl came over "
y Indy OS her woman.
llow long did you lite wilh my lady
e uauie over f— I lived with Uer le th(
of her death.
ben was Ibe day of lier death? — 1 cai^W
jUBlly lell I it was some time in October, ITtf
Daring' that whole eoufse of lime, was '
ever uut of her service ? — Never out ef '
Did you eoDSlantly reside wilh her as ti_
ira»Df — I was one week from ber in Irelaari
What lime was that P— When 1 ei
ther, I can tell you.
Do you not remember iliatyoD were lon^ j
absent from her? — Not in Ireland, r " "^
day, pxcepishe wnsoutB-visiling. I w.
' ini her a night hut that week.
Do TOU know a plnce called Dunm
is kingdom?— Yes, I do.
Do you remember » bo lir«] at Diiii
id iny lord and laily Altliam lite i
P9, we went down lliere.
Al what time, madam?— He giil down t* ]
unnnaine the Ohrisimas-Evc afler «
I)(iw Innifitid my lord and lady reside lo> 1
^eiheral DunmaiKe?— My lord did c
it likewiKe appeared by Heath's cnnfetsioo. tba
there \ie\a^ nub^ily entitled to take out adaii'
numuon, she had iMMsesaeil herself of m<
lady'acSeeU-, thai Mr. Aunesley having aioe
hiq return ohlaiiifil ihe administration, hud Alol
a bill againsl Henih, lor an aernuut of Iboa
etfecla ; ID which, alihuu|{h served wilh n soh
ptena. she had never yei ihO',<^hl lit lo pot h
her answer; so ihal it wan i^ain she was inter
esied in the event nl the preteiit (|uestioa ; aa
therefore they hoped, as she was under sucb ■ I
bias, she should not he ailiiiitied ao evideoM i
in this cause. But the counnel lur ibe plaintHT k
beinii called upon 10 pmduce the letters of ad- T
iiiinintraiioii, and the fame nut beinif jiroduoedi I
Ilia counsel lor the deieodaniiiisitiiril, that lb* I
plaintiff having failed in protinu the ifrant if J
Iheadininiatralioo, which »u>< Ihe t;.und4tiO« f
of his riiihl lo the elfeels, and consequently ih* 1
very basis of tiis ohjeclion to the eoni|iet<
of the wilneSB, hisnlnection muil tall to
ground. Thai if ihe filing a bill iiEainiii a
nca, wbo was inlendKt t« be examined, w
destroy that wtlnesa's coiDjietcncy, ii would h%_ I
Id the power of anj party to binder the wit* I
nesaes against him from ' ' "" ''
expcuee utily of a bill in Chancvty ti
allegatioun of u iuii«uvQua wiMmA."
n being eaaiiiined, at ibaJ
in Chaiic«ty full of te 1
lailjr 176B0BGBIL TMmJ^fMmmdiikMmJ.Jbmi^,^
tel I aui'i tdD jmdv whellier H WIS. in May
or June foUowioff ; Dot I know be was there
ipAftfil: heoeaetoDnUHiliiiiiNin andfeft
my hdf ind 1 at Dnnniaine. Upea 8t
Geofge^s day I luMhr Im vae aiPanmaiHi I
iM aaieef tnal»
How Umg In the whole dii they life le»
getheretlhumiainer— Ahb«t t^aa yean and
two nrtrth% to the heit of Biy icnieiDhiiiiee*
Do yoonaiiiBifcui hi what atanth they pavt*
eir— In FehHMy.
Jn what year P— I eall it irt6*i1, .
Had iiy kdy m ehiUal DuHMdneP*^
ddUl nefeirhM>MrMferw«a«ithehild$ I
MfMr had roMon to diinkdbe waa^ with oUld
nU tho «*hlle I lifed whh her.
Wha iwii mi iadr— adany iadyf*->I al-
w«(^didpaauapttiieweafclwaaahaeBt| while
aho wai at Dnmnaine: 1 aiwnyayit har.la bod,
and attended har at her riaiog inthomomhiiri
ftr aha waa aooh' • woBMnt no wonU not per*
nit any body daeto do iL
CooM ahe than ater be with ehild, or faafO a
hiffbeUy, nnknown to yon P—Noy nofor.
yTerenotyon atDonmaina at the tiuM of
Hia eafaratianP<— Yea, to be eore.
Via what plaea did aha ffo when they parted r
—We went to one ent Bnller'a, in Roaa.
Dtfyonga with herr— Yea, I went with
a wor-wheefted ohaiae and
her hi
a pahr ef
Udyoagetta Beaa thaaanedi^r-^Yea,
al night, dm night; Ibr my lady amde it aa
lalaaa aheeonldi ftr aha had no mud to be
aaan eoming in.
Can you remember the particolar day thia
happened P-i-To the beat ormy remembrance,
it was on the Sd of Febroary ; bat it was on a
fitamday, I am poBitire.
Did you life any time there, and bow looff P
•«-We ured abont four years in Rosa, to we
heat of my remembranoe.
Did my lord and lad jr oome together again
within that period of time P— No, nerer. I
don't know wnether she ever saw him.
Will you recollect yoarself, who were the
aanrants of the boose when you came down to
Dnnmaine P — It is rery hm for me to do so at
this distance of time, there were ao many.
There was Mr. Rolph aa tlie bntler, and there
waa Mr. Anthony Dyer, my lord's gentleman ;
there waa one (I beliere Rolph went down with
ns) Settwright, the house keeper, and there waa
Michael, watt what hiasimame was, I canH
tell, hot he was cook, and there waa Juggy
Landy that was the kitohen-maid, big widb
ehild. ^
At what time P— -When we eame dowoi my
lard, a kind of acullion under the cook.
Did you obeerfo her to be with ehild P— »
When we went down first, i went up to the
voom to my hMly, and soon after I <aune down
to speak to the hooae«keeper ; and I turned
abaot and aaw this woman with ohikis What,
aaya I ta the honm haanar, yen hnaa g«t n
maidbig with ehihl haml Ye%
got4ohadtorhar, and gmlRrwMiclli mi
1 heard that day | miAinlSi]
hunsad abant that it waa atrlnl
the child, and aeaae aaad voy krn
some the dey>hoy, aai aapsiai sf in
had to da with licr. Thia li whia
me, it waa the talk ahoHk the ittifr
Gife an aoconnt whaa haaamsV
mantha,tiMthe
her any IsMer, tift ww *
ery ents and then aha went ta hw'
and I naser aaw km titaier bntl
Ufed npen the hnA
Did aha go ef har cam neflaidiwt
tnmed ontP-^I eaaiH tsi.
Did yewknaw of any childihia
ddisend ofP^t ana^ thin «Md<
Give an aoaanna of thtt^r^ mrilitiilll
'awilblahidhachfnif itaalir
SrthBt J mkhtaanitinnd
, nod it waa ii fahmkeas tfMk
Who hionght the tdiiUN^i«gy
hanelf favanght It^
Ahavl what agn midbt the chlils*
iMMa PM[ aan*t really tA, whalhsr i *
or two'moBfha'ahl when I aaw it, I
jnMk.
md tUa ehihl any tDlenUe eiathn
The neakakith it had en wan what I
waa a oanrinie one, naia veiy ia
hionght it ftom Knghmdaaaangmy
and die chiU waa in aelaan hfiaiwl^i
her aereral ether thinga.
How came it to pam, that yon dU
direct that the chikTahaoid be bioatthtti9»
maine- house, than to that gate P— I wmU^
bring it to the honse.
What waa jour rsaaon for that P—fiMi'
1 would not haTe my kwd or lady kadw af
thing of it.
What waa your reaaon ibr seeiagtbt cW
•«-To know who it waa like.
How far was that sate yon mentisBed M
the bouse P — A little distance.
What was your reason ibr seeing it tfaan^*
I did not care my Udy should know tsj M
about it. My lady would not care die cm
should be brought mto the house. ^
Waa there e?er a child either chiiilisMf
lifuig at that house while you were it l^
maineP— Nojuerer. , ,
Did my lady erer talk to yon any lUlM
her being with child, or haring bad t ^
during that timeP — No, nerer a word.
Ladies sometimes tattc to women iBja^"*
tuation ; had yon any discourse efvr wilb^
lady about baring children, and what owy
diseouraeP — Yea, Sir, ray lady •^••IISl
aha had a ehild, on acoonnt of n qanrn ^
had with Mr. Annesley. ^
Pray, giro an account of that faflvf
dent toow how the oaaml hmn; ^
caflM nn one day nAv mnnar, ana WM'
i aakai her, wlMt waa tin MMr «
t^ fli^ niMLThnllrala hM»ff
I9B5] 176SOEGEIL TnaHmljfmhmikimmJ.
M.
jM fawir iDM iMi LdllMr-^Yfljib I
Wlutt WM di0r-4Bhe mi wbut we Mil
. _• • _ _ ». .
Wm 11 iMrkniMHtoclMitlMtMnr—
Yn, to frtnli Ae roiMMy and bmIw tlw bedi.
WlMt ttoM did ihe wim to MfV m J>aii-
naiM r--Three or Ibvr nooths Mm« my Itrd
Doru^tke tfane tbatyoo Kfcd It DimMdDa,
UliheaoycllMraDiphiyaeBliBtlM fiunilyr
•^HmMmtf flieepc tDeweit to Um Itmdiy,
whntlto kuHMM WM done ia the bMW, AIM
hdpid tlw hmndry'inMd to waih.
' Who WW lauiidiy-aMid ot thii 'timoF 1
OMMCtoU, w« hod nfonJ.
Did the diTHrano war tkM boAra tbt
■ifMHiin r--N<s w« hod no ohiU lor hor to
ilTHMIOt.
iMd yoo ofor oeo a ohiM io the bondo or
«Mo or Jooa LtdBm while.tho woo ot Doo-
■ihii hoooof— Noyoovor, Ibr wo hodao child.
Did yoo hoow ono Bdword LotwjcbOy o
ohoo.onihor ot Booif— Ho, I don't luiow odv
thteofbia.
Who* modo yoor 1odj*o ohooo ot Rooi?— I
dhs « kaowy lodood*
Do yoo koow of her bdyioff oay thoot
whikt oho lifod iboior— 1 dooH noioaBber
did.
Whot oort of thoot did her hdyahlp otoolly
Of what ookwnrf ■■ Sefci'oi oohwrty ood oe-
vend poir of ohooo, I ooonot tall whot.
Do yoo reoMoiber her over bcmooking o
poir of thoet for o liille boy ?— Tbot I om
ooro oho BOfcr did.
Had tbo a pair of white damadE thoea at
Roaa ? — She oerer had, while 1 lired with her.
Can you recollect what peraooa were pre*
aent when you taw niy lord come op otaira
with hiatword io hit. hand? — Indeed, I don't
knowony.
Where did yoo remore to firom Roaa? —
We caoie to one Mr. Corcoagh'a, in a place
called Stable-yard, I think they call it to, in
Mary'o-lane.
There too came to o lodging ?— Yea, and
boarded there.
How long did yoo atayatthat honae? — I
really canoot tdl ; but from tbeoce we went
to ooo Mr. Ikioij^'a.
What waa he ?— An apothecary in Charleo-
Did yoo lod|re and board there ? — ^Both.
How lootr mi^t you atoy there?— I canoot
tdl ; from thence we went to ooe Mrt. Mac
Mullen'a, I don't know whet the otrict ia, I
think it ia Tesh'e-aquere in MDontrath-atrod,
it tnma up by Mr. nUng'a, and there wo
n illlo while, two mao&a or
toEngland.
■ocailoet in whot
ir— Yoo, I om, in *o vow irM.
■llMfcfl
loakod ooftftr other ladrioflo
rhoriitapba tlMNoEoiy,
r-Vn^'Iwi
Did yoo oeo the owMT of Umi hMoM^
it
Do yon loooHoet
Did yott' oooM to any
I gofio Mra pitltb m
wo dU awliiEoibo
her flo^thot tho'di
ohoM Kfo «poa tbo
the piatolo ogoin.
Did yoo
^^dOror, 10 niy OBOwietweia
Did ny kdy ever tdl
that panao r-4f ▼ W
her hfe; te my lady boom knew iBy<
of.her,liadaofordidanooktohar,to»tf
Poring your hidy^ i oMdwea ■*ir<Cho|
nogh'k, or Kit^^ or Mm. Mm
ony boy rlait or woit «poa hor, «
No, nofor, MMhoy Mtdd wat. ' -^i
DU ony otfher pmoM fo wM yn^
Weot to flot '
I
yoo went
Mguga F-jQoo Mr<
ii
What
Didooy
yooF-^o.
Did yoo oforlMor M Booor ony
thia MBM boy, thot yoo My wm '
#y% chaa, ftoM the &00 yoo Ml
--No, I oeter troobled My hoid d .
Did yoo erer hear thot bo wm it fPo"
lio?— IbadheordlbotMylord hadMklio||^
but I know nothing of him.
Do you know whether my tord AMoo«>
alive when yoo went to iMiglaod?-4 hM
he WM ahre.
Had you any accooot oAerwaiditfli
death?—! had a letterftoM Mia. Mmm
len, giving me an neeooot thot ha 4il *•
Wbatwaa the purport of thot leltw?-J bo
the letter io my pocket.*
Did yoo oommooicatd that aciautt ^ f^
lady?-ll went directly and ahewol brW
letter.
How lOon after yoo rooeivod thii hM^
it that you gave her the nooooat ?— 1 o^*i
ractlT and ahewed the letter to her. .
What happened upon that? Did nQM^'
make any reHectiono opoo thatafiirf-*|
aaid oothing at aU. , .
Had yon^ lady any fbrtoM coMi i> M
upon the death of her bothaail ?-^ *;
ostato went to the loto lord Ai
having^ a jointore nettled opoo her
OhiM, the Abham ealato wotthi hare eMt
h
\
I
urn
« Acoordiog to the* Trial ot Bat*, A»^
wiONM piodoood tho letter aad oibai «
it, hMphMintcooaaol aljBfltad tolbti*
^0*
lofilMaidr
■ /
Tl
mnd Richard Earl ifAngluea.
A. D. 1743.
[1S93
id roy lady know that this estate went to
earl of Aoglesea? — My lady told it me,
Ise I should not have known it ; 1 had all
knowledgre of it from her, otberwiae 1
lid not have known it.
^hen was it yon had that disconrse ; be-
, or after, m^ kird's death ? — Both before
aeoonot of his death came, and after,
^id yoQ acquaint my lady Altham of the
port of that letter P— I directly went up
^^ and shewed her the letter as soon as 1
read it.
Vben did my lady Altham die? — Slie died
October, 17 S9 ; she has been dead fourteen
rs last October,
lad my lady any account how, and where
Isrd was btiried, and any circumstances re-
igto it? — No more than what is in this
ir.
Kd obe^ into monrning? — ^No, she made no
irnin§f, she was in mourning at that time.
Fhat sort of mourning ? — A Norwich crape
; she had had for my lord duke, and which
made a night-gown of when king George
first died.
ITere there any further particulars in the
er ? — She told in the letter, that roy lord
f , and was miserably poor.
Iki you communicate the whole contents of
. letter to lady Altham? — Yes, I did.
lad she any disconrse with yon, or did she
Ke any obserFations toucbinji^ any part of
contents of that letter ? — 1 do not know any
u that she said : she took no notice of it,
wbm read che letter as» well as f •
Vas there any conversation between you
Pit nay other person mentioned in that letter
<ics m? lord her husband ?— No, she made
reflection upon it, nor said any thing.
lad my lady any maintainonce or allow-
e from my lord af>er their tcparation ? —
my lord net er sent her a farthing.
Vho supported her then ? — My lord dnke.
i^hat allowance diil he p?e her? — ^There
• 1,900/. rcmaiiuler of her fortune in the
c's hands, for wltich he allowetl her 80/. a
r, g^f e her 30/. a year more, and when he
I \ki her 100/. a year.
^ you know a gentleman whose name is
Q K[ercher?^-He was once with me.
hould yon know him no^<7 if you shonM
him? Look about. — That is the gentle-
I I am sure (pointing to Mr. Mac Kercher) ;
old me his name was so.
lad you any acquaintance with him, and
^ did that acquaintance commence ? — He
le to roy house, I liye in 8t. Andrew's court,
(bora, and he came there ; there is the di-
Lions he gave me to find a gentlewoman,
I put the day of the month upon it that he
( with me. It was the ISth of April, 1749,
lie said, one of captain Brisco's daughters
I m town, and told me her name ; and he
Am his name upon it, that I should not
fBtit.
ire you certain he wrote it ?— He wrote it|
I Mw bira write it.
^OL. XYII.
Whit pttsed between you at that visit ?— -
When be first came in, he was a stranger to
™^» li^ggr^ ™y pardon, and said he came to
ask me some questions about my lady Altham,
Whether she had e? er a child ? — rtold him.
She never had one while I lifeil \%itli her, I
couk) take my oath. Then he told me how
this Mr. Annesley was rei^mmeiided to him
by two lieutenants, one of tbeir names was
Heutenant Simpson, bnt the other I do not
know ; and then he tokl me how he came to
him, and that be, Mac Kercher, gave him ten
guineas ; and then Mr. Annesley told him he had
no lodging, and did not know where to get one.
He said his house was small, but if he would
lodge with him he might, he should be wel-
come, and took him in. He then shewed me
a list of the servants names, and my name was
crowded in at the top, and I laughed at it.
There were sereral names, some that I did
know, and others that I did not ; there was Mar-
tin Nieff, and Charles Magher the butler after
Rolph went away, and there was Juggy liaf-
fan ; and with that I said : What can she know
of this affair ? Why, says he. Madam, she says,
that she saw old parson lioyd christen it ; I
suppose yovL know him, madam ? Aye, says I,
I knew him very well, hot I cannot think how
she can know any tiling. Why, says he, she
says she came to Dunmaine about a quarter
of'^a year after my lord and hdy came from
Dublin. So she did, says I, but that was the
kttt time we came down from Dublin. He
then thanked me very kindly, said, he was
very well satisfied with what 1 had told him,
that he would go home and wash his hands of
them, and turn them all out of doors, and would
not for a thousand pounds that he had not seen
me ; for, says he, if yon were dead, my lord
Anglesea \vould lose his estate and title, as
sore as you are aliTe, there would be such
bloody swearing. Says I, Sir, I arn sorry yoa
have been so imposed on, for I assure you my
lady had not a child. He said, Madam, for
what 1 have been at the charge of, I do not
value. And I told him farther. Do you sup-
pose. Sir, if my lord and lady had had a child
bom to such an estate, that they would not have
him registered ? He said. That they lived in
a country parish where no register is kept, and
could not have it done. But I told him again,
could he suppose if they had had a child born
heir to sadi an estate, that they would not have
had his birth registered ?*
* It appears from " The Trial at Bar," &c.
that
Mr. Harvard, connsel for the plaintiff, ob-
jected to Mrs. Heath's evidence, with respect
to Mr. M'Kercher's declaration, that it was
not proved he made those declarations by Mr.
Annesley's order ; and though it was admitted
Mr. M^Kercher was now an agent for him, yet
the Ofrinion of an a^nt was no evidence against
the principal ; which the Court admitted, and
said, the jury were not to take notice of those
declarations as evidence, Mr. Harward de-
40
1807]
17 GEOEGE 11. Trial in lifecttneni behoem J. Amedegf eif.
■oIkiioiw.Mj Bl««iifftiNi; whit lady Blet-
nogtOD do yoa omn r Th«re wm one capt.
Boyle, I lw?e oecii bit UAj.
Sbe isibe lady I ii^ean ; did yoa Ofor see
Imt Tint lady ihbMnP— I* am wife I liare
neirerseen ber.
Do you remember ooe If ra. Pfggot P«— Yea.
Did she risit lady AHham ?— Yea, ahe did.
l¥aa there ao intimacy in the family P — Sbe
viaitedua more in Rbaa than at Donmaine.
Did Ae nui my lady at Donmaine fire-
qoently P*-She did, but not often.
Where did von dine the day of Falliaer's
affair? — Nowhere.
Did you get any thing to eat when yoa
came into Rosa ? — I know we had aome tea
there, 1 cannot tell whether we had any thing
cue*
« Did yoa eat nothing elae that day P — I cannot
tdl, for there were none hot the aerranta there.
Did not crowds gather about to aee my lady
come into' RoaaP^There waa a crowd of
peoplOy bat it waaao dark, I coald not aee who
they were.
Waa it dark when yoa left DanmameP — It
waa duakiah when we left Dunmaine, but it
waa dark wheo we came into Roaa.
What happened upon the quarrel between
my lady aiio captain Annealey, (Kd he leare
the booae opon it ?<^Not immedntdy, but he
ntf er came op to dine with my lady after.
Did they never come into company at Dun*
■Mine aftor P«— They nerer did ; my lady aent
Ibr him the next day to come up to dinner, but
he would not ; ahe then aent to know if he
would hare aomething aent down, and he
would not.
Did he erer come to dinner after at Dun-
' maine P — Not up stairs into the parlour.
Did he ever come to Dunmaiue after he left
it while my lady waa there ? — He nerer did.
When was it they firat met after this quar-
rel P— When we came to Dublin afterwards ;
when we came, ray lady took a chair to Mrs.
Vice'a, and she met Mr. Annesley in En^x-
atreet : he said, Your serrant, my lady ; yuur
ladyship is welcome to town ; and atWr that
he came to Mra. Vice's.
Do you recollect what month that was in P —
It waa riolent hot weather, I believe iu July,
for it could not be a month before the queen
died«
Do you know one Mr. Hussey P— I do
know him.
Did you see him at your house in London ?
—I did.
Did you ever discourae with him relating to
this affair P — Yes ; and told him aeveral times
that my ladjr had note child.
What Mr. Husaey is this? — I know nothing
but that he was an acquaintance of an ac-
quaintance of mine that brought him to my
house.
Did not yoa tell Mr. Hoaaey that the plain-
tiff waa greatly wroiml, antf that joa knew
more of that affair than any bo^^Noi kj
the virtno of ny otlh| Vmfnr dkl.
Did not you see Mr. floasej st ji
when the report waa that this Mr.
waa on board the fleet with adminlV
Indeed I do not know what time.
Pray recollect yourself. I wk
not this immediately after that Mr.
was on board Vemon'a fleet? — 1 do
what time.
Waaita month after you heard I
•—I do not know indeed.
When was it you firat heard th
—The first time 1 heard of it, I h
be three years next January.
Who first informed you orit ?— T
of Buckingham sent her woman
could not think what ahe could w
said nothing to her woman, but wei
and when 1 came, and went up sta
down, her woman was the first thai
it
Waa it not immediately after thai
John. Hussey came to your lodging
not (ell what time he came.
la it three years ago since he a
you P— I believe it is three years i
cannot tell what time.
Waa it not two jrears ago P — I bai
aeveral tiroes within these two yeai
had the discourse about this plait
times.
Was it two years since you saw I
Yea, it will be two yeara— I cano
Waa it before the duchesa of B
sent for you P — No, I knew nothing
duchess sent for roe.
What state of health was lady
when she came to Dublin from i
was lame.
Was not sbe troubled with a deai
cannot call it a dead palsy.
Did not that disorder deprive
limbs? — She lost her limbs by that
came by degrees ; but when she
Ross, she could go about with bold
hand.
When she went to London, wbi
she in ?— She had lost the use of
she could not stand ; when I first n
don, with one hand I could lead he
room, and then with both hands, a
at all ; I was forced to put her in :
wheel her about.
How did sbe come by that diso
deed I cannot tell.
Did not that disorder come on hei
was a report that she had a child i
The disorder began at Ross.
Was there any report, that you k
lady*s being with child ? — Yes th«
port before I lived with her ; J heai
thing.
Was there apy such report afte
to Uve with her? — No, I donotkna
there waa at any time after I caoM
her.
Waa not ahe bed-riddeo of ydii
Ibra ber death ?—N0| ake Mf« VI
^ jP
IQ end Hkhard Earl ij Angli
KS oolslie iin|Hiirptl iQ lier sense*? — No,
lanr was; tht wm wrII in her chair tbe
, Wnre liir deitUi, ■nd the touk a fit, and
lit lier tu beij, oail she died Iht^ next niglil,
ill lh«l lime she liaJ ber leuses as perfect
ay body in the coutt, and I'oulil mauage
fT affain, lur 1 oever kept any BccounI I'nr
mm not lliitt lUOf. a year lell lier by tbe
ta (vue utKio ibe Ueatli ut' niy lord Al-
1 ?— Yes, ii *Bi.
Bw was kbe supportnl tben to ber deaib ?
ICBiue my laJy duubeis ^nve ber 100/. a
I br Ibe interest o( Ihc 1,^1)0/. ifker the
•f dratb.
« liave vou lifed aiiice tbe death ol'
illtbamr— In ilie bouse I now lire in.
' ' M do you fullowT — I take in
ork, and I have some inoDcy at interest.
U wasbcr-womaii':' — No, 1 aiu
attiroedid tbe dukeomiickiDgbamdief
Hknoiv, Ue was denil Mnrc luy lady
illu Hii^luiiJ, lie W8) dead bel'ure pte
Mtil your pi'csent way nf living f — I have
terctt ot Bome money Icl't me, Kud I take
^■irotk, DDd elear-itarcbiag ; my dau^h-
id llive Itigelber, and webaie iheiotereat
_Ml 700/. bcitveca us, but llie greater part
jil my daugbio 'I.
KWagf about eight o'l-loch at Dig b I, Ibe
nfcy llie like finsenl as usual, sig^iied by
pnws and rrnil in u|>en court, adjourned
■ next morning ii ten ol'ihe clock.]
1 Saturday, NaveiaUr 19, 1743.
%t Ceart being met at ten o'clucb in Ibe
rt>K, according to adiotiriiaient. the jnry
|k calM, and answered In llieir names, and
like enunwl Inr the deTtndani pnicceiled to
Wm Ibcir wi[ne«sei as tiilluws.
Soierl Kin);, one of the .Aldermeli Ol' the
City 1)1 Dublin, swoni.
, be knew ibe laic lady Aliliam ; that
ne to lodge at dsponenl's bouse in June
il Ihatsbe bad a woman and a roolman
(ad her, and Ibat niie Mrs. Ilcalh was
C~0inau 1 sayi, she lodged and dieted with
nU; sayt, he never heard her say sbc
• MB ; that sbe wai almoal every day at
tuni'a table, and deponent ticquenily
nl her luniriil ber minlortunes, but never
ti her lalk i>( a tou. Being tiBl>ed if il was
mal ihat ihe bad a son; tays, he caouol
ilfllwurniuled that she bad a son, hut
MM that il ihe had had am tbe wonbl
■ tnvnlioned il; and oi dt-|ionent never
Td !•• r Nik vf lirr liavini:' ime, ii indnced
>'! bud. Say*, ftlra. Heath
.1 >vhde in di^iionsnt't bouie ;
■rtoie lible wuh my lailj,
I iH-d i and bullevea nhe wa*
BeingBikiidif my
lady was a aickJy w
to be impaired m t:
A. D. I74S. [1310
1 ir bIic aeefned
ipaired In ber understandine; saja,
sbe liad a paralytic disorder, but ihat it da*
not alTect ber understanding. Being asked '
he ever saw a child tisil ber while at bis bonni
Mys, he never did, unr did be ae<t any
visit her but one Mrs. Mears.
[TJie counsel for tbe defendant baTing iske)]
those for tbe plnintilT, whether they »oi"
cross-examine Mr, Alderman King; Mr. lli
ward answered, Tbatifihev n
quaiated will) nil tbe defeudant's witnesses
thvy were wilh Mr. Alderman, they
not cross examine any at Ibetn. Tl;
Chief' Baron observed, that the counsel
both aides were very polite gentlemei
morning, and wished ibis understanding
ElUabeCh Doi/U, otherwise Mallpy, sworn i{
Ihe Voire Oire, and then in ubief.
Saya, her maiden name was Ooyle, bu
now Molloy ; says, she knows Dunniaine vi
well; that sbe wsB hired in Uubhn d
vanl to my lord and lady, and lived with lliH
there uboul thirty years ago, lo the best ul' b
knnnledee; that my lady came toDnnmaii.
on tlieCbristniaB-eve, in 1713, and depoaefl
was Ihere the night before ; lays, the conlinita
iu the service about a year, and was laundry
maid; Ihul sbe married nut of the family, and
lircd eleven years at DuumHine afler my Ion'
and lady leA il ; says, thai my lord came '
deponent's cabbin one day (after ibe had I
the service) as he was bunting, and ask
deponent it' sbe would dry nurse iugay I
Landy't child ; that she told my lord Si* I
would dry-nnrae a child far bis lordship, bvtV
uol fiiT Juggy Landy ; says, thai this diseouns J
wai after my ladv came to Dunmaine; sayif;^
she saw the child when be was about a ynanj
old; that Juggy Landy was with child nba
de|)onent was ib the service, and sbe w;
brought tu-bed about May, after depone
vaine ; says, my lady lived ai Duomaine abo_
three yeara, Lllsbe and my lord parted ; ibaf^
this waa a good while after deponent left tl
service ; says, deponent waa lo have lakeii tl
child into her own bouse, lo dry-nurse itM
Being asked bow old ihe child waa when njl
lord apfdied lo deponent ; says, she cau
Being asked wbnl sbe means hy dry-n
says, she inesni to take care ol a child alteTlj
comeabome (Von) the nurse; tbainoi
child of six years old is dry-nuised. B«ia|
asked if she ever knew of my lady's beifl|
delivered of a child, while she was i: '*
vice; says, sbe never knew uor e
il ; Ibat if my Isdy bad bad a child, sbe won
not liave conccalud it, for ihat sbe would hu
been proud of il, for dc|ioneDl has heard h
aay, ahe wished tu liave a sou or daughM
Being asked if she temembi-ts any cbrislenia|
at UuDinaiue honiw, or atiy r^oicings on thi
——lion while she was there ; aays, she dM
remember au5» abiiAcM^, — ~~
1311] 17 GEORGE II. Trial in
kcard of uij ngmdng* tfae» on mj meh
[CroH-e»miDed.]
Bciog askw) if she ii lurs (be heard luly
AhlMin uy tbe would be prsud of baruir, or
wiiliedlohaveacbiU; ■ayB,iibflneTeri)urbeu'
her say eo, but knows ihe would btve beeo
pnind of barins ■ child. Beiug asked if ahe
crer heard tady Attham My, she bad a child ;
•ay«, ahe never did. lieing asked when it wsa
my lord *pi)lied to her lo dry-uurte the child ;
■aya, the canoot tell. Lot taya she hsa dry-
nnned cfaildcen al teo years old. Beioc- a&ked
if she knowi Mr, Juna, and Blr, Keily ;
■aya, she knoifs Mr. Jaot, but not Mr. Reily.
Being' asked if she knowa one David Howlel ;
nya, abe doea not. Being asked if gIk never
hfd any discoune with any one about my lady'a
batiog a child, aod that if she did not My Ibat
my lady had a child ; aays, ahe does not know
ol any aach diicourse, or that she ever aaid my
lady had a diikl. Being a^ed if she evir
aaw lady Altham after the left Dunmaine ;
saya, ibe lavr her at Ron and in Dithlin.
Being aaked if ahe waa never married before
akfl married Molloy ■, says, she was married to
one Byro. Being asked how long it traa stln
b«r marriage llial my lord ■pplied to her to
dry-uurte the child; saya, slie cannot tell:
■Lys, my lord was un horae-beck wbeo he
■pokeloDcr; saya, ahe baa forgot the scrvanta'
namei that lived in the family when she waa
there ; says, her husband waa a farmer and
joiner, and paid IS or 10 pouuda a year rent.
Marlia Ntife sworn.
Says, he koew my lord and ta<ly Allham
very well, and know* Dnnmainc in thf cuuiity
of Wexford very well, that lie livi-il there u
yearbeforemy lailycame; that he na<i smith
and larrier (o ray lord, and he bnn);bt luuls lor
deponent, and built him a t<>r-,'e. SavR, bt: CM
and drank in the boose, anil slein iip-slsirs,
and lived there all my lady'a lime, but was Kirk
three monlhi, and waa tlien at tints, and in
Thomas-towD. Being askcJ what time nf
Ihe year he waa aick j am, lie cannot tell,
that he is no schuhir, •nu could not keejt an
acconnt of it ; says, my lady nas ni'ar a year
in the bouse before he fell aick. Bein^ asked
if he remembers the day my lady Allham dc-
parteil from Dunmaine ; says, he does, fur that
he went with her to Uoaa. Being asked liuw
loDg it was al'tcr his sickness that my lady Al-
lham went to Hosi ; says, he caauot tell.
Being' asked u hat time «l the year it was he
came hotue after his sickneaa ; believes it was
about the b(>i;innitis of winter, hut before my
lady went away. Uein<; asked how Inni; my
Udy continued lit Dunmaine; iiaxi. my lady
came (o Dunraniiic a day or lu ■^ )>eti>re ( liriat-
maa-day, and stuidlhiie till ulnml ( Iiiistmas
IbrM yeera alW, and to the Candleiiius ful-
lowiog. BeinE asked if he did ever xee a
ehihl at the Imusc of Uunmaine; savs, be
SMW uw • chilli there, %tit a bai.lii d 'son of
Ejectment MueeH J. Aiuudty, itq. [ISII
Joan Landy's, who was broufbi Aite'a
about two Rianths aller ny lard ai h^
parted, and that be aaw him *<ib *jm
three years alter the teparali«n; tW at
little time ader my lady weal airajF, tktiill v
was taken into the house. Boa; tdkd^ i\
were the aefvants there in hia^ine;Hj«,h ii
Taylor was the head man, AnlhoDj'I^* ii
tended my lord, and waa ffentliBan II |a *
when deponent came to Ine bo*e. Bif
aaked who was my lord's gentlctnn Ilk
lime of taking the ebild into ibe hen~
there was one Kennedy, who also itt
my lord, botdepuDCiit wp not pMtivtita
ther Kennedy or Dyer waa lliea mj '""^
gCDtleman, but one of them wai gniln —
him at that time. Bein|[ asked whemp ■
lleman after Dyer to my lord; atji, kib >'
lieved Kennedy was. Beiitg asked if bii
saw Joen Ln*idy, when she was with ibll;*^
he did, and saw hercbild twentylinmiib >
arms, when abe used to come atwut ftci^
of Dunmaine, and especislly when njW
was abroad, she uiied to come'; forahaH^V
ask, Is ray lord abroad? ile oOniKvlf
come in the back [lart of the house, whnik
force was, to get aomething to eataalM^
ana ahe received meat and drink itmUl
butler, called Thomas Ralph. Bristriri
if she ever nmsed a child ; says, ^ ~
nuned a child except her own, while il
ponent waa in the country. Being uka
attended the child when it was brougk
the house ; says, the dairy-wonMD ata*
calUd Black Kale, and the child wu *■
wards brought lo Kinnay, in the eoiBii
Kildare, when my lord went to live ibot, J
the de|ioneTit saw him therewith mybrt, J
it was ^e same child that was at B""^
that the deponent caw at Kinnay. Beinfri*
if he ever saw that same child in Dublisi^
he did, that lie saw that same child U CiAp
Utcc'n, playing among the Iny* ; moM <f >||
hojs «ete slioc-hoys; that hewasBfiihir'*
dud, Dor had shoes nn, nml de|ioi>pnt kha
niy lord lived at that time in PnIK^■■l
lleing B-.l,ed whethir it was the Hfx^*
saw in Kinnay, that he saw in Coll»geCr««
aays, it was I'se same boy. Being i*'"'*'^
ther he saw the same hoy at CinicW*
saya, lie docs not know CarrickdulT. f
obked how old the boy was when lirn*
at Kinnay; says, bclweeii foor and fiir)
to the best of his knowleilge. Sup, hn^
saw the hoy siuce he saw him it C«^
Green ; that he doe* not think he ronU b*
him now, Saya, he believes my lord "l*"^
Dunmaine two years. Being "'"l "Ijl
child was the boy rf^putud to be it Ki»^i
sajs, lie waa then rqmted, by ettTj *J
Ihe servauts, a bastard sou of Jonn Uigj
and whenever he did eraiss mj lor^ J*J
Imve him nhlp;ied ; and deponenl licinj
!ui'd once say. Damn the hisianl, be *'|'^
be ^ood, bccauito be had JnggV l"*^J''j!5
inbim; says, mylonl »hipii«[tb*koT«'2
limn, aud used'to aav the aaiiMtUfi''
5J
and Richard Earl ofAf^leseam
A. D. 1748.
[1314
liiin a bftitin] ; and my lord desired the
K to be let at the mother, if the called at
caaj. Being asked how was Joan Landjr
loyed when she was in the senrice ; says,
^ras kitchen- maid under Forster (the cook),
she left the house because she was with
I . Being asked if he ever heard of any
I being christened in Dunmaino bouse
c my lady was there ; says, he never
Being asked who was my la(i)r*s woman ;
9 one Mrs. Heath, and nobody (as depo-
; knows) attended my lady but she, and he
at Dunroaine when my lady came there,
before it ; but can^t tell who came with
ladyship to Dunmaine. Being asked if
ras m the house the day of the separation
ay k>rd and lady ; says, he was tliere at
time ; that it was on a Sunday. Being
<1 if he could tell the occasion of it ; says,
lord called him, and all the men servants
ae house up ; that my lord appointed to
at one Bennet's, but he did not leave the
I of the town before lie returned ; that the
»aent met his lordship going up stairs with
i*awn sword in his hand, and asked him
rvB be was going ; and my lord ordered the
»ttent to go alonff with him, and presently
deponent heard the hue and cry in the
n ; and afterwards the deponent went with
lady to Ross at night-fall ; my lady de-
ii it might be late going info Ross ; says,
nobody was with her, but Mrs. Heath ;
the deponent was by when my lady went
a chair, and it was a four-whceleif chair,
ae best of his remembrance. Being asked
sere was any child brought to my lady to
chair to take leave or, as she was going
-y ; says, there was no child brought to her
ike leave of, and the deponent saw never a
il there; the child called Jemmy Landy
with his nurse that day. Being asked
* was his nurse; says, Juggy Landy his
lier was. And being asked why he called
bis nurse ; says, because he saw her nurse
9 and if he did not call it right it was be-
ac he was no scholar. Being asked what
il was brought to Dunmaine house ; says,
Sy Landy *& bastard by lord Altbam was
ight to the house. Beinjf asked if he
«v Joan Laffan ; says, he did : she was in
bouse before my lord and lady parted, and
in the house after ; she was there in the
Mm of a laundry- maid or chamber-maid,
tig asked who visited my lady at Dun-
pe ; says, capt. GifTard and his lady, capt.
«rd's brother and his lady, and one Mr. f
ftcs, who used to come there oflen, and
-t with my lord ; says, he believes his name
William £lmes. Being asked did he ever
w Joan Laffan attend any child there ;
I, he never knew her to attend any child at
oroaine ; he knew the child used to sleep
1 black Kate, while Joau Laffan was in
house.
[Cross-examined.]
Idog asked if he lit ad with my lord all
VOL. XTiL
the time he waa at Kinnay ; savs, he did not
live with my lord at Kinnay all the time he
was there ; he staid there for some little time,
from thence he went to live at Kildare. Being
asked how long he lived in Kildare ; says, he
could not exactly tell, but believes he lived
there 30 or 21 years. Says, he removed with
my lord to Kinnay ; they were a year at Bal-
lysax before they went to Kinnay ; mv lord
went to Dublin after the separatiou, and can't
tell how long after he came thither ; but he
went after to Dunmaine. Being asked when
was the child taken into the house ; savs, he
was taken into the house of Dunmaine before
my lord left the country, that the child was
very ill dressed then, that his cluthes were not
worth 6iz-|)ence ; he thinks they were some
old things that were made into clothes for
him ; believes it was silk, but can't tell the
colour of it. Being asked how long was my
lord in Kinnay after deponent parted with
him ; says, he believes about a year, but that
he never saw his lordship af^er deponent left
him at Kinnay, but in Dublin. Being asked
how old was the child ip Kinnay, when he
left it ; says, about five years old, rather over
than under. The child was in the beginning
but badly dressed, and in very iudifferent
clothes, while deponent was in Rinnav ; but
my lord af>er bespoke clothes for him. He had
a habit and a little petticoat, and he went to
school to one Johny Mahony's, who kept school
near the Curragh of Kildare. Beinj; asked ivhat
colour the habit was of; says, he believes it ups
made of a slate-coloured frize. The clothes the
child had at Dunmaine were mad? of an old
night-gown ; and the first clothes he had
at iCinnay were worse than the first clothes he
had at Dunmaine. Being asked if he saw him
in his first coat andbreecbes ; says, he saw him
dressed in the first coat and breeches at Dun-
maine, and that they were red, and the sonants
used to say Jemmy would foul his breeches,
being the first time. Being asked if he heard
my lord ffive directions to have him whipped ;
says, he iieard my lord give directions to have
him whipped, and that he was whipped when
he wore the slate-coloured clothes; and the
deponent heard my lord say he would break
any servant's head that would let Joan Landy
see the child : my loni spoke to Rice, who was
coachman, to whip the boy, and said he would
never be goo<l, he had so much of ihe hlood of
Juggy Landy in him, and deponent understood
he was Juggy 's son; for my lord used the
wonls his mother, Juggy Landy. Being asked
how old the boy tlirn ivas ; says, about dfe
years old ; says, that he never saw my lord
fond of tho boy ; that he was used to see the
boy running m and out; that he frequently
saw my lord at dinner and supper, but did not
attend at table, being only my lord's smith ;
but that he was as free with my lord as any
servant could be with his master ; that he never
saw a child at my lord's table: that he >«a8
used to see my lord as deponent vteut through
the passage upon several occasicas ; and of\ea
4P
1315] 17 GEORGE II. Trial in
went into the parlour to see him, and to get
money to buy iron, and had access to him at
ahy time. Being asked if Anthony Dyer
lifed with my lora at Ballysaz ; says, he did
not ; says, he knows Mr. Lawrence Misset,
bat, to the best of his remembrance, ne?er saw
bim at Kinnay ; that he had no knowledge of
bim whilst he liyed at Kinnay, but it was pos-
sible he might have been there without depo-
nent's knowing it; says, he does not know
that Mr. Misset huntecf with my lord. Being
asked how old the boy was when he saw him
at College-green ; says, about seven or eight
years old, and that deponent lived about two
years at Kildare before he saw him in Dublin.
Being asked if he could know him then ; says,
he should then have known him among five
thousand : he knew he had white hair. Being
asked if he knew John Fitzgerald ; says, he
knows two of that name. Being asked if he
bad anv discoucse with any John Fitzgerald
about the plaintiff' or defendant, or that he was
to getany clothes from Mr. Jans, or money from
apv one ; says, that the day before he bought a
baifpennv-worlh of tobacco from long John
Fitzgerald, who lives in 8t. Thomas-street, and
never told him he was to get any clothes from
Hr. Jans, or that lady iUtharo had a child ;
says, that he never got any money from any
man to appear in court; and the way he came
to appear was, that he happened to lie sliooing
a horse for a man in Kildare, who came irom
the county of Wexford, and happening to talk
of this anair, the deponent desired him to tell
lord Anglesea that he was alive, and that he
would tell what he knew of the matter ; and
desiicd he might be seut for, if occasion re-
quired, to give his testimony ; and desired the
man, whose horse he was shoeing, to tell Mr.
Darenzy that he was willing to give his> tes-
timony. Being asked when he was in the
county of Wexford ; says, he has net been in
the county of Wexford these twenty year^, ex-
cept at Gowry. Being asked how long it was
since he saw the man in Kililure ; says, above
a twelvemonth ago. The man mentioned the
aHuir to him as he was shoeing his horse ; his
name was King, to tLe best of the depouent^s
knowlcc^ge; and, as he thinks, it nas men-
tioned in discourse, that the man said that he
beard that the right heir to lord Anglenca was
come over. Deponci*i said, ii' he heard he was
the right heir, it was iVom those who knew no-
thing of it ; for that dtiM)ncut knew my lord
bad no sou, but by JiigLfy Landy ; and hearing
it talked of in tbe county of Kildare, he said
it was Jciumy Landy that was come over.
The dLj-.onent said liltle care he saw Joan
Lafi'an tiikcof any child. Being asked if the
child had ever a scarlet habit, or a fealher in his
cap at Dunmainc; says, he neier had ; that
my lord came to Ballysax, and he lived there
for about a t\>cU'emonth; that he kept his
hounds and horses at Ballysbannon, when
be lived at Ballysax himself. Being asked
what servants my lord had there ; savs,
Bwrry Askjn was his groom, and -«— Uice
was his coachman, and deponent nuu
two other servants; says, they were H
for about two months before the cbi
there; that he cannot tell wbetha
Landy was ever there, hut thtt be i
Laffan there, and my lord would bar
her to he ducked, but that something
to prevent bim ; says, he cannot tell
my lord sent for the child, or whobn
child.
It being mentioned to the deponent,
haps hemiffht be mistaken, it wascai
not frize, the child had in bis habit ;
nent said, he knew what camblet wi
could not mistake camblet for friz<
asked if he knows Mulhall a taylor;
believes he lived at Kilcutlen-bndge !
not know whether he saw a taylor at
not : he saw a coat and breeches on tl
Kinnay ; but is not sure whether it wi
or not, but he was sure it was re
asked to whom did he go to school a
says, to one Johny Mahony, and tl
house was a little cabbin near the
that he did not lodge or diet there,
was not a bit of victuals to be had tb
dieted and lodged at my lord's. Beit
he knew one Connor a schoolmas)
says, he did, but he did not know tl
go m any other school but Mahony'
asked wnat sort of a boy he was ; si
a clean faced boy with flaxen hair ; i
nonent oflen heard my lord say
bastard-son of Jnggy Landy's; ar
sence of the servants it was said, h
much ofthe blood of the mother in hii
asked how was the child treated i
gentlemen ; says, he does not say tl
treated as a bastard among the ^en
^lut ho never knew any gentkfiit
themselves about him ; but he was
the servants* as a bastard-son of J(
Being asked whether he was introdu
gentlemen as my lord's lawful son
was not introduced to any gentler
lord*s lawful son, as God was his jui
he never saw the child dine w ith m
tliat he cat with his servants; tha
saw him ride abroad with my lord, i
wai not able to ride abroad then ; t
members he was very mischievoi
cook was drtissinj;; victuals, he usa
him, and put thing's wroug. B
whereabouts it was that my lord g^av
to Kicc (the coachmau) *al>out wh
boy ; says, that it was at the kitclu
lord gave directioiis to Itice abou
the boy. Says, that he never saw i
Kinnay, nor did he ever know thi
visited Mrs. Anncsley at Bally shaiir
he ever see the child in coinpaoy wii
llemcn at Kinnay. Being asked
present when my lord directed the
he set at Joan Landy; says, tb
Elmcs was present, and it was saidi
nent*s hearing ; aud he heard my loi
he would not wiidi for ^uoA that Jii|
r
and llichard Earl nfAnglfsea.
A.D. 1748.
temnUitmr (iiechllil, »!! ibal he woulil
SOnl. more lliat lie had [;<'t the chilil b; nii
ialiwaraaii; titiJ Ibecbilil was called in all
otuQ Jemrajr JLaody; but Bomelimes llie
nucsllej liim Jenimy Annesley, but be-
I il was becniue my loril gol tbe cliiU ;
ledepoaeni never beard him cnlleJ young
jinn Caiilfielil swoni,
. B koew tbe late lord Allbara, and
^^■dy M Dunmaine, when sbe liteil nl a
called A-Clare, about a mile from Dun>
e : that »he was bred and boru ibere, and
tnpre before my lady caine to DunrDaioe,
fter Ebe had leh il. BeiDtf- asked if sbe
beard ot' my lady's baving a child at
Daine, or i)b»erved her beiog with cbild ;
abe neter heard of ber bnving a child till
«, and llint abe somelimes went to Diln-
B house about Eome business, and neter
in; sigoa of her bein^ wjlli child. Seing
I il' abe knew any ul the servants of the
) ; says, she was acquainted with Eliza-
IHullay, aud with Mr. Rolpb, and witli
Bay Dyer, and knew Joan Lauily tbe
m maid, and remembeml Jnggy Laody
It. Gisoree's day, and ibat abe observed
tg bellied, as she was dancing, aud all ihe
wiy DOticed il, and wondered bow sbe
djuice so well in ihat conditioa: try
iptmoled Ihat day t<i be bejit a day uf
I uid deponent beard sbe was soon af^rr
ftit to bvii, and saw ber tbe summer alter
^OiKDt'a father's cabbin, where be used tr>
! hia tuif, and there was some discourse
; ber sou. Saya, il was tbe common re-
it was my lord's sod; and anerwardasbe
the chilS at school at one Patrick Fur-
■, at a jilace called Terry-rash, and be
IokIiooI |mrt of tbe lime from my lord's
I, Says, (hat my lord Allbam, lu some
aner the Aeiisralion, came lo Furlontc's,
c tbe boy was at school, and asked Fur-
,Wbere» Jemmy? aud ihat my lord said,
Ofdd boriie-whip Purlou)f, if bo would lei
tutanl go ue*r Jugg tiandy, far he would
ciMsii be saw her; aod deponent heard
alMy it wbcn sbe called to see Ihu of
I who went Id that school, but abe
"leboy at DuDinaine.
' [Croas-eiarained.]
iked bow old sbe was; says, abe is
iriorly fouryeanold) Ihalsbenever
' to Furlong 'n, but thai she called
ultera, whoconlinued tbe siim-
kI, and weietary young; says, she
uli) at the mother a breast; saya, she
. . rj till wilbiu these two years that
"yLaady's child was dead, bnt that abe
f thai Joggy Landy bad a thild by her
ind, Saya sua was present when my lord
I to FurlanK. Uein^ allied wbvlbcr she
kkt npOO her to say it whs tbe tame child
pa M tile molber'a bransi ibnl i,lic aaw
Hm'*J fS't abe would a«t he llie
world lake npon ber lo eay it was tbe
child ihat shv «aw at nurse that she s:
Furlong's. Saya, she knows lather Duwl
and saw him thai very i\Ay of her examinalil
Sayx, she is a Roman Catbolic. Being
b^ tirtue of iier oath, whether father Dot
did iiromise to give her abaotution for <
she was to swear in court ; says, by virlu
her oath, be never promised to give ber si
Itillon, and never mentioned any such thing If
her. Being asked what day is Kl. Georga
day; says, some time in April.
William RoteU sworn
^ys, he knew mv lord and lady Allham i
Dunmsine ; he lived at a place called Ballyci
more within a mile of Duomaine, and was i^
r)a»ioted wilh my lord's family, at my lof
house, till atler my lord and lady separaial
8ay«, he oever bean) lady Altbam bad a c' "
or was with child. Says, he is a farmer, aoa
used (o go hunt with my lord, and ibat my lord
atooj godfolber la one of bts children. Being
asked if my Ion) bad any con Teraaiion .with
him at any time about a child ; tey, mr tat^ m
told liim several limet he had a child by JugnqJ
Iianily ; says, sha was bronifbt to bed m t
cabbiii near the lands of Dunmaine. I
asked if he beard mv lord say he bad any i«
by his lady; says, ne heard my lord say I
never had issue by bis lady, and he neTer H
peeled to have any ; end it my lord bad i
child by his lady, Ihe deponent must bt
known it, for he woa ai free with my lord ii
he had been my lord's equal. Mays, thai af
the separation the child was brouglit home, i
one (lay my lord wds siauding in the bilchMJ
and Ihe deponent heard it said Landy did D
belie him, tor the child was like him by I
eyes. AVhen tbe chitil was brought borne, r
lord named it himself James Landy.
[Cross-examined.]
Being asketl what sge the child was al tl
time; aaya, beiweeu 3 and 4 yeara old, a ,
couM not apeak English. Bemg asked ntu
coloured eves my lord had; says, that to I
best of his knowledge my lord Aliham's —
browa were very lilack, aod bis eyes were sra
The depunrnl said, thai if my lord ond tl^
chilli were face lo face, be could Icnon if ibajrl
wera the same colour, but cuinot remeuibsfl
pai'liculnrly the colour of my lord's eyes; aajj
the child had a while linen vap on, and Ihei^
fure the deponent could uot tell tlie colour |
hi* eyes. Being asked bow be came
vcne so familiarly witli my lord; aaya,
my lord gave him liberty to talk I
and said, tefore my lord came to Dul _
deponent hi ducouric luhl my lord, that Jofl
Landy told deponeni that she was big wij
child by mj lord. Being asked where Job
Landy lived when this discourse bap[>er-^
says, in my lord's Iioufic,
Mr. Michael Vaamn fwom.
Says, he kueir ihc late lord and ladv Altbuj
at^Hiimaino, in iJie parinb of Tiuilwtu
:• GCOkGE IL T-id bt Jisr
iifVcidM. B*
>«^
« %i
%^vt
4
I*1T ?N*
u Vi ".-MMMii L«^;ifr 1 •ntuc*-. xr^ ac^. ^vo
Tmc »j jdri Mifi M«t T c*«« to m6
f&U( SMC J* «M?t U ^ ifea M Wft K J
liri. tsMr ««« A ft iwtafLi «r tiMe v»^»,
*tjt !&«!, W «Alt< t* 4(W U^ K^ U D'.S-
•kym, h<e •« ft rcqpwiitTH foett, a»i iT<4 ^
mifeW T»dMv» 4i v«ftr» piML Jmi.
Itt &f«i wJtaa ft aiift 4if iABbsniu; ikftc'he
■it««r lMft#4 saijr .ijifaaai Ui ft cU4 ; tbu ike
r«friUtiMi «f ti^ owtry wftft. ibfts
uncrkftdftdJii; tbu k« Wciaerei if ftbe
In4 ft eki4 be tbMad kftve beard ftf h, for
iKiMAkcAt ift Mn «f bii pftriftb. Bcinfp ft«k«d
%bftt fCftftMi lift bftfd Ift tdttve be sbobld bftie
beard it, if »bft lifti a cbiU ; uji, tbe reftft&o
va» lecftiuft fftjr lord SMd u> Cft^l at hi* L/ose
after bobtiftjf f «rj ftfun, OMsd to ukc ft cup of
biftdfiakyftod tbcd«poiB«Blb«ftrdinjr lord wisb
bft bftd ft cbtld by bift wiift, %^ if tbe bftd bft.i ft
cbild, it could uoi be wiUKiat tbe de;«oaeBr«
koowkdge, becftme tbftt he was fo weil ac-
^uaiattsd ia tbe fftioUy, and was trcftted by my
Wd wiUi irre^ ciriUy. 8jys, be kept a re'-
ffi»t«T, biit did not re^ifttcr Proteatant cfailJren.
BeiD^ ftfckcd wheo h waa tbat ny bml nid be
witbed 10 bare a child ; aaya, it waa wheo my ;
kprd liffcd at Duamftioe, and tbat roy lord said; '
be wiiiiied to hare ft sod by bii wife. Bein;^
asked if he koevr aoy of the serrftots of the fa- ,
ffiiiy ; Mys, he was acqaainted witli 31 rs.
litMlh, Uith Jtofph and with Aothooy Jiyer;
i>ut did Dot niucti care to be acquainted with
a:.y of the rest. Beln^ asked if Martin Niefe
the smith went to mass ; says, he did ; hut hr-
B*:v«r Kftw Ji^au LafTan at mass. Beint^ a«)kfcd
if he knew Joan I^ondy ; says, he saw Joan
Tniiiiy ; she wa< kitchen maid for some time in
Dunmaine, when my lady first came there— it ^
aei-ms she proved with child, and my lord had '
ft IaII, and the danced at it, and was discovered
to be with child, and thereu|>on soon after she
iras turned out of the house ; she went after-
%rard« to a cahbin, where her father lived, and
was there broui^ht to -iKtl in tbe latter end of
April 1714. ^ys, he was applicJ to, to ,
christen the child, but an my lord and he
were upon f(ood trrms, he was loth to christen
the child where it was, Int it might offend my
lord ; hut the mother (and an old woman)
brought it to one J)nvid Baron*s house at NaKh,
whf'ii the child was alK>ut tf fbrtnii^ht old, and
lh( ri: he chrihtencd it ; but he firnt enquired
who was the father of the child, and was told
that lord Allham was : that he afterwards told
tnj|^ hid, that he had made a Christian of the
child, hut had not received any retribution for
it ; I hat m V Iml said it was well done, — lauflrhed,
lind said, he Mould requite me hereaAer ; and
ihcH my lord added. It seems they put the child
apoa inc. bays, be imned the child Jamef,
there, be Le.jcTci be oasK : l*<
t^ be aevef beari « bat >rraa
afier be kft Dcnxzuiae. Si j r. 1
Landv's motiMrr'» yr,ti»,*g • -^^
hu: w'as not %\:i9, of v..
Belo^ asked whether be m^
maioe without s««.d^ c^y la '\ :
CO tliither and D'.t «£e i=.t 'i':y.
if be could recollect wli: lsj
was the separati^io cf rrv i.rJ
[Xriied ; sayj, th^ VEparir -n :
Canoteoiaa ; and bcug' a^kei
his Michaehnsis i^o<«se \«i:j i£.\
at liucmaine; savs, th^t he \
lord and lady «ere at I)u;in~. jiiii
mas-da V ; savs. that latlv Aliha
Dunmaioe a day or two bt-ture i
but cannot tell vihere laiy A
Christinas after, but kQo>« « slie i
mas in Dublin. Being' a^k«.d it
the time the Pretender^s men ^
assizes of Wexford ; ss} <:, he i]
was in some trouble then ; and
April assizes, and tliat he cume
day before the day of tbe ^reat
was the 22d of April, and luy
came to Dunmaiue in a few c
they went afterwards to Duhli
continued in Dublin, and my h
Dunmaioe, and tbat the depoue
my lord there. Says, Dunmai
of Mr. Cscsar Colclough, but
has a lease of it. Beingfaskc
the child to him to be cbriate
grandmother brought the child
my lord would have it christenei
and it was delayed aboat a ibrt
was chrittened. Says, she did i
directed by my lord to bring th
deponent to lie christened; ihi
Rfid Richard Earl of Angle
felber, and liia dirEClions were,
ihoulJ be called Jainec ; where-
•eut »id. You My the lord ii the
■nd be «iiauld be called Jemmy
Ituree. .Says, he did not desire
Kbeu ue Ibund it nas my loril'a
it WM bis custom uuon iiich
gfet security, Ihal ihc child
le a burthen to the pariah ;
bout July he RBiTibe child the
without
andalnced-hat ;
iru not silk; it waiuf a whitish
best of hii knowledge. Says,
went JDtD the house that day.
A. D. 1713.
•aid any thing. Says, that the
n belweeu three ana four yeara
iced what he said ti> the child ;
ed Ood 10 bleu him ; that my
rite op, and that he tlid rise
(irn in a little time after. Being
diild could speak plain at thai
)r did not speak plain to le un-
et he believes the child went to
time. Being asked if he saw
the bail he nienlioaed ; says, he
Bt the hall, hut those who raw
if it, not long nder the ball, and
I on St. George's dnj the ball
Rked if he did regiEiter the chil-
aays.
edid n
Ihey had. Being asked if he
ihat Joan Landy had a child that
lall-pox ; says, he heard such a
i not mind it ; says, he did not
Id of Joan Lanily'a. Savs, he
Xjnady to one M'Cormnck, but
Ited ta bury anv child ; sbvb, it
Illy vears ago that he first iieard
; ileatli of Joan Landy's child,
tuld nf it afterwards ; aays, he
it was like lord Ahham ; says,
lember the cnlunr of his bait,
wa« black, but cannot be pusi-
tg ago. Bavs, be cannot be po-
t lime my lord taid it was his
ither it was before or after (be
K asked what was his biiiiuen at
^~a ; says, he was bonnd over to
le mi cbargeil with giving meat
ha Preleuder's men, who were
_ lyi, Ihat he thinks Mr. Thomas
■herilf. Being asked if he did
iCicsar Cnlcloiigb or any iHxIy
j ; Bays, be did not — the higb-
nnred hlra, and look his own
Ht was bound to appear at the
bit word to the sbenff, and lord
to be bound lor him, alicr be
with the aflair. Says, he does
he had any ctaTersalion about
i*en to Mm, nor did be consult
■jriM to give him absaluli'm ;
HMiMDnBinaine about a yeai'
after the Beparation. Being asked if it i
coMimon Willi people of his religion to teon (or
persons of hislnnclinu when their children diet
says, that commonly they do ; but suraetinea
the poor people don't ; but if a child dies under
seven yeara old, tbey iicMom are aent lor, be-
cause It ia BUjiposed a child under thai age can-
nut commit murtal sio. Hays, be neter mud*
an affiduf it in ibis cause. Says, he did not ap-
iilv tn loni Aliham when be was to appear at
cxford NBsi'fFS, tiir he naa under no fear, but
he rememlerH my lord voluiitarilv oRcred bit
friendihip. Kays, that after the ciirisleoiog oT
Jniin I.«ndy'i child, she was married, and that
he christened alt Joan Landy's children aflrr
that time, but does not remeiul>er the names oi*
the children bechrietene<l ; says, that he heard
the report nf Ibe death of Jnnn Lnndy's child
ofthesmall-|)OX from one David Barou titu«i
three days after the separation.
Pal Furlong sworn.
year. Says, he bad no employment under mj
lord. Bay« he wai a foHter for live or sis
years ; lliat he had a lillle farm, and kepi •
little school by llie bounds of Dunmaine nn the
lands of Italbclaman. Being asked if he re-
members the name of any one that went to
school lo him ; luys, he remembers the uomei
of two yoang women that went to school lo
bim, and tbeir names were Mary Croke and
Nancy Croke, and two brothers whose names
were Hnnlona. Says, he had a son uf Joan
Landy's 4»1led Jemmy ; that lord Altham seal
him to school lo bim, and he remained witU
him fire or six munlhs. that he was about two
or three years of age when became to school ;
and that deponent went every morning for tha
child. Being ask >tl if he knew thai my lord
and la<ly separated ; says, he knew that tbey
separated, and ll was about two months after
the separation that the boy was put (o achool
to him. Says, my lord called several times, m
he was huniing, and desired the depooenl at
hi* peril, ihat Joan Landy ibe mother should
not see iJie child, and my lord gave the depo-
nent Ibe same direciinn* at his own bouse
when deponeol came to Dunmaine. Being
askeil.wlicn he last saw Joan Landy ; says, at
a baker's in Ross, about a year ut;o, and lis
■aw her about seven years atro in Itiiim, Says,
when the child was at school with him, be had
n bahit ofadark colour and wore ocap. Says,
the haliil was not silk ; says, the child wni
deemed lord Allham's son by Joan Landy.
Being oaked if he knows one lleixlenHin, b
QiiBKcr, says, he met not long ago a grntle-
miQ called flendenon. and was tnid he was a
Uoaker ; says, he remritiliers lady Altham'a
c<iming to Dunmaine, but never heard she had
a child. Being asked if be ever saw the boy
alXer be lei) the school ; says, he saw him U
ti^tm, when be was about four or lite yean old,
and believes it waa the u,m« W^
^Cmss-exaniint;<J.]
IMnf; asked if lip iVTiicmljiTs llie scptratinn;
f ajfl, lie iliiet, and tliat vbniil a monlli or Iwg
•Her ihe (;-|>nruli<>u, tin- chiiil vat pul to school
toliim: 8U}'R, tlic cliilil uas lli«i about two
years duiI a lialf, or tlirre vcirs old ; tlial be
was very smart, s|inte Irish, llie laii^runge liia
f^nilfallier and ^randaioIliL-r spuke ; tliat be
sometimes walked to school, somctiuteB the
deponent tirnu^lit liim, and soinctinieB tlie
Oilier bojaliru'ight liitu ; snj'ti, lieiva* not of a
bUJck complexion, hut had hruu-ii hair ; lays,
he MW hini at Itns^, at Mr. E\y'e siiop ; lays,
the buy he saw at Hdss naft the lauie that had
been at his school ; Bti\ a, the tviutir coining on,
the boy >vaf taken trum liis school, and had
made no (;rcat [ircgrtfii uhilsl he whs at It ;
•ays, depooeiil soon aner hU vfT krrpinfr the
Bchool, that he a(\eni'arils Raw the liny >I
lie, and tnj lord gaTe tbe deponent a.
Arthur Merdsiiom to the Voire Dire.
Sayi, be neier had any reward fur appearioK
and ipvin;; tiia tesliniooy, btit his received
two guineas and a i>i!^tule to lieir his rhar^^es
to town, froiu the couuty ul' Wexford, uhere
lie liies ; says, he is a ^ii.Triu'i|{-iiiaker by
trade. Bein<r sworn ia cluef, says, lie knew
]ord Altham rery wi'll, and lived iviih hiiii as a
•ervanl, and came iiitu bis serf ii» abuut twenty
or twenty-onG years ago ; cays, my lord hap-
pened to come to the shop, ulicrc the dEjiouenl
vas an appreDiiet; iu Ross, niid bcarini; depo-
nent'* name meuiioned, niy loitl said. Yon are
niy country man, if j ou come In lire with ue,
3?uu sliull never u ant a ^hilliii:; in your pocket,
« guB io ioul, a horse to riili-, or a whore.
Says, lie went tu live with uii lord, nlicn tuy
loril liTcd at Currickdufl'; tliat one Mr. Tho-
mas Gregory was then uith iny lurd, and that
lie remciiiliii-ed one Weeden in lire with my
lord ns ooaciiiiiau or ^ootn, und that there was
a child I'litrc rcputifd to be my lord's knn by
Joau Landy ; that the child was Irealed as niy
lord's uatuial sun, that he eat hunietimes ul my
lord's table ; lliat there was one Slnifaen, a
Larpcr, wbo used to draw picturtv and fiuicies,
and lauglitJemmyAuDeslcy to spelt ; that the
child had ascurtetcoat and a Ifteed-Uat ; llist
iny lord was i isitcd by Mr. \\ urreo anil inBJor
Dunbar ; says, ilic child was nccinieil of pillt
ing, and depooL'Ul saw my lurd correct hi
very severely, in Froper-fune. iiays, there
was a hurlins in the country, between lord
Allham and Jilr. Durn, and that ray lord went
to tlic New-ion in Micliaelmas 1734, and went
■Her to Cross-lane, and thut one Catharine
Caiiltield, married to Neil o'.Neil the footman,
look care of llie child ; that my liirJ slaved at
the NcW'innlill lo\iarJsChrisi"nias, andlodged
anerHards at Cross-lane ; and stayed there till
tlie 25th of March ; that deiioneni gave cap-
tain Uimpton a three ihilliuj^s and tbur-penoe
piece earnest, fur takioir captain Simpsoo'i
WUN u l^pix-luie J thatjiLviCKgoryud
IS-^JJ 17GE011GEII. Trial iAEjeelmnt between J. AimaUy.ttq. [IS|
a serranl maid bred with my lord; thit^
hoy was kept worse in Propcr-laur, lluDa
where else ; that he went to schMl M m
Carty'n, who kept school in FluiilulVTri
in Froper-lane ; that my lord went (nat^
per-lane to Inchicure, and that dioctltto
was corrected moat severelv, and Ibu «i(kj
laid he had the Ihieviog- blood of iheLuM
in him, who usetl to steal corn and ihtep in)
my lord finding he could get do uwdifh
boy, sent him lo one Cooper's in SbJp-n^
to lodge; end the deponent uerec si*li
since, till the 15ih of MuTcmber lut; a^
that my lord lived at Inchicore in tbt jil
1731.
Deinc; calk-d upon lo eire an aceowilri'll
meeting the lessor of the plaiotiS'. uJ ill
hnppencd thereon ; says, that oa the Uti
Nuvemher, in the year 1749, od Hm*
morning, he was sent for lo EoaiKHlh,!
the QTieat snow, by one Whclan, whoWUUs ,
If he siiid two woids cunningly, biifixtBHii| ^
made ; whereupon the dei>onent went all
Bear-inn, asked for the eentleman, udM
shen-n into a room, where Mr, MackertbttH
writing; that Hr.Mackercberaskfd hiail^ '
iher he hurl lived with my lord Altb*B,d .
sp'ike about Mr. Aooeslry. That htu
be had lived w iih my lord, and cut llrAn
hair, and belieieil he should know bii ,
by the parttcuUr Ibrm of his face; ikaili
dciionent used to make him fiddk'iinJ;)^-
things ; says, that when itlr. AoDcdfj ~
into the room, be kissed the di!|ion<!it, ui
thi-deponeiit cnuhl ^cnat his lace, liuln
positive it was be till he gai e some mubal
tokens ; that Mr. Anneiiley said tu lii
name is llorJ ; that the iTeponcut ai
should be called upuu as a witnrss; ud^
he said, thai for llie Anirlesca cstalc In nA
not tell a lie. That !tlr. Alnckerchir iJ^il*
who was Mr. Aniiesli;y'$ ii.'nlier ; anJ iiiuif
CBueiit said, his answering that qotjli'j.i ••-^
e of no service lo bim ; that JugiT) Li^i'
was his mother. ThcnWr. MackerciiffWi',
if Hr. Annesley had nutsonit IiUii'a«"I
lady Altham ; to which the deiioui^ul i>i>-m'>
that he did iiul «e a ftatuit: In hislacr, tti'*'
like kdy Allham ; that ihen Mr. iluit^
toidt the paper he was writing, and '"^'ifjf
threwit intuthelire;and theiiune>>U°>?'
the footman, claj>iied the de{iunuil m **
shoBlder,and said, Dr. Arthur, youiIuJI^*}
longer in this place ; this was in F"''^
Mr. Anncslcy, Mr. Blackercher, uvl ci^
Liviston ; that the deponent then looknl*''*
coat, and frowned at Ihe fellow, immiwS*
S|ioke iu that manner, oaaccLiunt orUM»*
ness of deponent's dress. Being aikdl " *?
rest of the gentlemen heard it; siy),^'''.
say Ihey did. Being asked, did he ^x^.
was tilt Bime perion that was with B)'|"V
Bays, he helicv'd it nasthe samepersJn- ^^
oiy lord houcht his lime, before k i"*^
live with his lordship. Being uiknl, bf
waB employed in mj^ lord's strviCBjgJV
WM emf kiyed ia waTing n; lord, taif^~
]
Mnd Richari Sari qfAngteua.
bi> kltm, tnil wu employetl in olhEf
i. Depnnem remember* ■• be wia capj-
it some (lenoininKlions of tuidi, lo ba sold
Ersion to Mr. Oneaipboru* Gamble, orthe
f dfCork, tliBl there WM some talk, to
, llief^reatpslalenoaldfall: mflordsiid
lid gi) to BIr. Charles Anneiileyt but lis
eiidpai'our to get an act of )iarf lament to
it on liis brother; and mjf lurd wai so
itli ibe deponent, that he cat de|ian(?at*a
and when Jepo neat had a great cold, iny
rauifbt biin b copper ol' mulled clarcl to
Tor bia cold ; savs, that my loril avked
oce in preseni-'e of Mr, Anocsley, Artbur,
ur mother a Protestant or a Papiit 7 that
cnt aniK'ertd, hia molber wbh a Pro-
t; and thpreupen my lord said, I'd rather
one hundred [Kiunns that boy's ntolher
a. 8aya,hetoldMr.MackercherinEo-
thv, tbat Mr. Anoesley sent several du-
•j Dim to bis mother, and that he brought
Bg* frvm bis mother Joan Landy lo bim ;
lat bo remember'd to have once broiicbt
' of stockuigs to bim from her ; tbat
iipoD Air. Mackercher said, it nag com-
lor Irish women to call one that tbey
d, their own child ; days, that Ur. filac-
er bid the deiiont:nt tliink better on't ;
At. Annesley shook his head on this, snd
d pale, and said, it was strange the depo-
i*ould not say aa all the olbcr aerTanta
lo which deponent answered, You know,
bad a better opportunity of knoniog than
(her servants, and 1 was nearer lo you
they; sayt, he meant by that, hissliaving
)rd and copying his letters ; says, tbat
he had mealioned the pair ot stock-
tbat he brougbl lo Mr. Annesley, Mr.
lercher said, that such trifles aa those irere
aOD from nurses to tbose they nursed,
the deponent pointed lo Mr. Slackcrcber
art u one of tbe company.
[Cross - exami ned, ]
ing ulced if he saw my lord correct the
; says, be saw mytord correct' the child
al times, because be bad bim on his back ;
Ibit in Proper-lane my lord currecled
reryseferely ; that he was accused of pil-
g, and he owned it himself; it na^ uiy
Riiised tbe things. Iteing asked what
tbe Lbings he was accused of pilfering ;
> a jockey belt, and some pigeons, whicli
BDressed ; saya, he never knew of any
plaints made by miss Gregory to my loni
t him; says, when he was an apprentice
"Ms, he saw my lady going to cbnrcb ;
■By lord was angry that Ibe hoy was dull.
C aaked about bis own sge ; says, Ih'ii he
"■K book that he was born in ITOS ; but tliat
'VdoD his marriage, bis fat hern i ad:! bim
A.D. ms. tISM
wasatCarrickdiifT; that be saw Mr. Owag,
Mr. Stone, and some others liiit there. Sjya,
he was employed by my lord in sereral sta-
tions ; says, henerer saw Ihe plaitililt' ride out
nilb my lord ; Bays, be never saw a feather \a
his hat there, and bclieres it could not be a silk
mat be wore ; says, the plabtiff somelimea
dined al table with my lord at Carrickduff, but
when people of rank ditied with my lord, ha
did not ; lays, he told captain Lefiston, that
lie used tucut Sir. Annesley 's hair, but did not
»>e tu altcnil bim ; bays, be told them thalCa-
Ibariiie O'Neilbad some care of bim, and tbat
bis
By G— d I ke^ him in bin m
* bu mother wore a red peiiii:u
2*t tail whether my lord i-u-i
■■yn'k « at Hr. CkTCDagli'i,
Woyagea, woliime tbe third;
James and Paddy used to call one another
cousins; says, ba beard the plaint! IT went to
one Cooper's, and that he heard my lord say,
he was a son of Joan Landy's.
The counsel for Ihe plauitiff asked, if he
CTcr said tbat my lord debauched Alisa Ore.
goryF
The connsel for tbe defendant ohjecled (o
that question, because it would subject the wit-
ness to an action for slander ; therefore he waa
not obliged toanswer: they said, that lady was
one of tbe wiloesses to be examined by Ibe de-
fendant, and ought not to be discredited by
anticipation, and as she wss not present to clear
it up, no imputation ought not to be thrown on
her.
They insisted, thai no witness was to he dis-
credited by particalar facta, bnt by genera)
cbarac'ter ; that particnlar facta might intro-
duce dirt in all catisea, therefore tbe qoeMion
was not proper,
Mr. Titdall, of connael for Ibe defendant.
When a witness is examined tu a con Tent nt Ion,
it Is proper to examioe him to ail parts of it, (o
have the whole before the Court, because Ihtt
Court and jury cannot distinguish the ronTer-
sation properly, unless they hare all parts of
it before lliem. The witness may demur to
nliat may criminate him^lf, bat cannot demur
as 1(1 another.
Mr. Walsh, for tbe plaintiff. The point is,
whether the <)ueBliDn is uroper ; if it bf, Ibe
consequence is not to M considered ; your
lorcliibipa and the jury can't judge of a conver-
sation, without knowing the whole: of It.
Jjird Chief Baron. There is a wide diffe-
rence lietween what is aaid in prexvcc of the
plniutiir, and what is not Riiid in his presence.
Whatever is said in presence nf the plainlifT, is
evidence sgainKt ihe plaintiff. If gentlemen
will nir|u>re what infloence Miss Gregory had
nr<-r b'^.l Altliain, it may he pniper to be exa-
liiifcd iul'i ; but nii man is nhligcd to answer a
•iui'N!i>'ii, il':t< iiiaysiibji-ct him luan action ; but
, Im'.I , 1,-.' ni^'^ :<':'.i>L.- ihefprcslion it' he pleases vo-
1, I'' ,' l::nli'<'iiy.'* Jl'j. ijuektion be relalive tu a mat-
ici :•! I +• I;" .111 :s i;rr-[,'-iry hid been cx:mwit&whv
lit b'j I n ;li<v>:, vi t\ic ■:«.«>«, «v\&t:a£« \n ^«si ^^Mk
1387]
17 GEORGE IL Trial in Eftctmeia hHween J, Antitdci/, aj.
UriniMiM, it my beuuwered, if it doe* not
1 to & ^ueation, iT he be litble to u
■ctina tberaon.
Hr. BMtMtrd, for the plunllff. No nun
canbenl^eottoanactioDior wiut he njtia
ft oont of jiHtice.
The Coart elloved tbe objection.
Tbe deponent wM uked, if beereruddftat
Him Grccory miMerricd ?
Hr. Prime SeijeoHt o^ected to tbe qoett
becAnee it migbt ley en imputation on her, ee it
Then tbe ileponeet nee eiked, if be ever
beard tlitt Sliii Gregory waa married to lord
Allharof
Couoael for tbe deftadant oUected to ihat
doeetioD, at it tends to defame Hin Gregory,
became lady Altham was then liriog.
Beiog' then asked if he told tlie compeny Ihat
Mi** Gregory did not use tlie child irell ; says,
be beliered be mlt^ht tell ibein bd, but did not
knoir that he erer sair ber use bim ID. Being
asked if be told Ibem thai Miss Gregory's mo-
tber bad a great falliog'out with my lord ;
cays, he believes he did. Hsys, he does not
remember that Hiss Gregory was called lady
Altham, but that be heard at Boa* that ahe was
called lady Altham.
Tbe -plaintiS's counsel obserred, that Ihe
vitoesB used some subterfuges, in oot answer-
ing the qnestiona properly.
And then tbey asked bim, whether wluit he
told Mr. M'Kercher at that time was true or
false?
The Court wa« of opiaion, that a qncstion in
that way was improper, because it tfould iu-
Iroduce what he tneu said, not only ad evidence
against the credit of the wituess, but as evidence
against the defendant.
Tbe deponent bein^ asked what was ibe
Says, he beli..'ves my lord would du any thing
lo please Blias Gregory, and that be Mliefcd
■he was not eery fond of Mr. Aunesley.
[Herd's cxarninatiao being finlsbeJ about
8 o^clock nn Sitliirday night the ISlh of No-
vember, tbe Court, by the like consent ns
usual, wbicb was read in opun Court, adjourned
to 9 o'clock thrnext Monday mDrning.]
she was not deserving of credit might certainly
haTs liten received ; but what the Lord Chief
Varuo is here rupresenlEd to hsTe said, tends to
the monstruus and intolerable doctrine Ihat the
trial of an action between anytwoprnions may
be maile the instrument of ilvfaniation againht
a third peisiin, uut appearing' in aiidi trial, and
Mt ioiereiled ii) the et eat ol it.
Monday, A'oveafierSl.
The Coart met on Monday merai
cording to o^ourament, and ihejin
called over, aiuwercd to theii laws'
Says, be went (o school ts oneO
Proper-lane; that be Mmenden eei
went to school with bim, BDd a boj
school there under the name of h)rd J
son ; that to the best of depoQenl'i
brance, ha wss reputed to be my loid'i
son, but cannot remember what wh
licular name, or bow loiw it is ago, be
beat of his knowledge, Ite aaw the a
last summer in Ann-atreet. Beiag ul
old he is; says, about S3 years okl,)
about tbirteeo or fbnrleen yean oMi
went lo Mr. Carty's achool. Ssyi, tl
of ibe boys who went to that scbool i
sons of people in low ctrcumstaoMt.
TAmuM Strtmg sworn.
Says, be rememben Daniel Csrty
school in Plnnkett'a yard in Propet-l
lb at the deponent went to his scboo
that he remembers one Anoesley, * In
to Bcboof there, who waa reputed lordJ
tiastanl sou ; that Annealey was a n
school there, lo the best of tbe dfpoH
membranee; that be saw the same bi
wards in Ormoad-iuarket, but never ca
lord. Says, that the boys nba wra
school were mostly tradesmen's cliildrt
he remembers one Harry timuti w:
at the same time, and that the price
scbool was a cmwn the quarter.
[Cross-examined.]
Says, it was the ciimniuii rc[>orl oil!:'
tlial the boy was unl my lanl Atrhii'^r
son. . Kays, he knows Patilck I'lunkM
sure he is acquainted with him; bcliir
a very hone'l man, and that he wuuid
aralBethin^Fui>on bi^oath.
Thomat h.ii ret sworn to the Voire I
Says, he knew a boy at Ross ia tl
1734, who went under Ihe name or
Ljtndy : Savii, the boy litiilin hisliou'
iVL-eks, and in the dcpouenl's brolhiT'i
lour months that year, end that the il
had no coiuiileretion fur maintaining Kia
be was reputed to be lord Allbam'i nm I
Landy ; that he came to Itoss, *i bn
liody In take care of bim, and that tU i
Ross bflnni^ed to bjssnppctLed falbo';
came l-) Ross after lord Altham kit C
duff; Ihat one Mr. Weldman, my hi
ceirer, desired the deponent's broUMcl
care of him. Savs, he saw him in Re
bis mother Joan Landy, before be Find
deponent's bouse, when he was skci
years old or tbemboot*. Saj^ IW '
^ and Richard Earl of Angles:
11 yeiraold nhen he came (o Kora the
d lime ; *n<l Hie reoMin tbe bny came la
epoticnl wu, becaiiae one Cormnck. his
tra buibtiid, would not encoura^ him.
Juan LbdiIv mairieil Cormuck at Rest;
be lieknl ifie bnj w«iil to Dublin after
i|f hiimolher; says, Juan Luid; never
to see him, while lie was nitli t-'ne de-
ll ; nyx. lie wasBonietlniei called Jcroony
■ley, and luiueiinies Jeiamy l>Bnily ;
lie DGTer saw him before bis mutber
111 bim Id Itoii, and ihe first lime lie nas
M, lie <*aii abuiit fne year* "Id, and Ihe
d tiuie lie (-iiiiie lli^e he wis about II
old i taya, he cannot tell where ilie Ixty
fa'uttjme beliveen the nge <il' 6 and 11
c uja, be auw bim about a iiioiitli agu
tM, and also about twelve montlii ago,
IM he noH llien called Jaroea Annrsley ;
be is *>iro be is the aame person ibat liail
nrlf livwl wiib bim, nod ibui ilie Jepn-
luew bis face ; aaya, iliai ibe plaiiiiitr
willi about Iwi^lve men iuto Rois. iiuil
lie deiionent knew him umong them, and
vaa llie first lime the de|ioDeiit na\r Dm
he lived wilh the dqioiicut al \loM.
A. D. trts.
[1330
trro
].inn).]
ft, lie lired in Rou barorB Jnaii Landy
married, but can't tell how lonif ; Kuys,
ifljr tvaa about 5 yeara old the 6ist lime
lt[iooeiU *aw bim, aa near aa lie could
li aaya, b« did not ask whose son he wna,
Ueitwaa in rrery body's mnulb that he
lieuLandy'a luD ; says, thai Joan Lnndy
In Boss till within lUese three yeuta,
Y bs cuinot exacily aiy wbatclolbva ilie
tad on tl>e first time he savr bim ; that
dMlies were of bo liltle talue, thai they
Mt worth obaervini^ ; It wax seme )ort of
r&, but the deponent never look notice or
Haya, he nerer look notice of his having
mall-pox iheiitst lime, uor did he ob-
' any impreasioua of tbe cmall-pox ibe
4 time i Myi>, he saw bim at Carrick-
tome lime before he came to live wiih the
kot, and then he was between nine und
Mraold; iayB,bc never bad any dincnurse
UanepiDOllier.
.and
IP*, he came for the aake of truth and jus-
Beini; eskeJ bow liini; be had bred in
I aaya, he hat lived in Robe about 50
\t (asceplabuui ayear and a half.) Kaya,
taaeen a boy al Row, aliewo by Thomas
N (o biin, and never nan' ttim alter, to llie
of bia kniiwlcdee, rxcpt with a genllv-
WbviacBlltd Mr. H'Kerchfr, b« drfio-
la iulbmii-d. Ileiuff asked 11' he «rer
I that lady Altham bnd a child ; aaya, lie
' did, and btlicvea it ia impuMible the
Id bave a rliild without bin knowing it ;
tlut he bti heard a bunJrMl time% that
— ■ 4acfiild; tliathevras well oc-
'Hlfabip nhca »he livad al
DunniaiDe, and it was ibc reputation of iha
country, ibat ihe never bail a clilld in OiiH'^
maioc or in Irebmd. Says, he wna very well
acquaiuted with the late lord An>{leaai ; tbaV J
he was ofien lo visit my lord Anattaca wiitf ]
many genilemen, aud never heaAuiy chiUi [
made mention of, and believes if tliere was en]< I
uucb, il would hove b«en talked uf: rays, m« |
lord had some Giisplciun of some Eug-l'ish afi
lair, bat nol of this sort. Says, he ia mairiedr 1
to a niece of iMunsetlor Auneiley'i in b!ii^ J
land, and that when he viijsieil lord Angleirel (
lord Altham would never be pleased at it. Be4 '
in;; aSiked if tie aaw locd Anglt^ca Eaon aflev, I
the death of lord Altbani; says, be paid hw
conijiliinent to my lord Aiigleaea nftet my lord I
Allliam's death, and he never beard ufatty bmi I
of ii>y lord Allham's. Saya, that Ion) Angltw J
aca cams into possesBion of the lord AlthamW I
eslaie, undcujuyed it ten years ; and Ibeda-^ J
iioiieiit had a letter of attorney from I
lord Aiiglesea, and ^ve minules of il
tenants, and no person framed a nntiont
of lutd Al Jtaiu's, nnr ever made any olijcetws '
iiu account of il. Saya, the tmva of Imm it'
alinohi entirely the Altham csiste, ^ if lunf 1
AllhaiD had a Bun, he belierea lliti'e mul ha** 1
been aouie nliis|>ers, nnd it would liave rtut J
from one to another, and would have been aq 1
seeret ; there would baie been TgaicingB ia [
RiHis, anil it would hate been talked of by lliK
whole country, and would hare been known ik I
every cnunty, nay, he birtieves the whoW -
kingdom, and all bngland would have heard
'■ ■ -■ - - „ , -
aon by Jou
[Cross-examined.]
Says, be baa seen earl Jaroea. Being ashed
if he knew Joan Landy'a child ; says, he did
not know the person, but he was shewn to him
by one Barret. Remembers eail Anbnr al
Dromolan. Believes one Miggiaou waecon-
ccrneii RS agent for lord Aoglesea. Says, hecnlN
not recollect when he was fn^t acqtiaioled wilb
earl Arthur ; and says, Ibat after the time llia4
lord Altham look to his lady again, earl Arthur
never cared for lord Alllinm.
Ge«rge Brthan, one of tbe atlornjes of tiil
moJKily's Court oF Exche(|uer anorn t«
Ihe Voire Dire, and then svinrn in chief,
Annesley; says, thelirstnlacs heaaw him waa: '
ill ftois ; he was then called Jemmy Altham i j
and liie deponent did not know him ibeti ]ff I
any other name, but does not remember tnt
year, iiaya, he rcnicmbets tbe dealU of king
tiWTge Ihe first, and thiit the guide la bis me*
inory waa tbe flection fur Rosa ; says, he re^ <
members that bis I'albcr was served wiih M
eicotnient, for giving bis vote lo Mr. L(« nod M^^
Totnam. 8ay», ho saw ilie lessor of the plaiuiMT^
at llie drnoiient's father'a houae, and be v '-
a roiacniulecoiuliiUw, httia;<Va'««& i'
1331] 17 GEORGE IL Trial in Ejectment between J. Anmsloff esq. [IS
lord Althaiti's natural soii, the deponent gaf e
him bread, and supported him, and took him to
his father's stable, lest he should lie in the
street ; says, he also saw him at the house of
Francis fiarret, who was an ale-seller, next
door to the deponent's father's house : says,
the boy used to run of errands, and the de-
Eonent remembers to ha?e heard he misbe-
aFed. [Deponent was going to give an account
of a conversation he had at the Walsh's-head
tarem, but was prerented, as it was matter of
hearsay.) fidng asked, if he saw the same
person afterwards ; says, he belieFCS he saw
the same person afterwords. His reason for it
is : about the time of the report of the taking
of Carthagena, there was a rumour, that there
was a person in the West Indies who claimed
the estate of the earl of Anglesea ; and in No-
vember last, as the deponent intended to come
to Dublin, he beard that Mr. Annesley was
eoming to Ross, and tvaited to see him , and
when he was riding into Ross the de)>onent saw
hiiu with many others, and observed his face,
and says, he pointed to him, for he remembered
he had a high nose ; and the deponent beliered
it was the same face ho formerly knew, and
which he described to one Mr. Millbank before
he saw him. Says, he bclieres he is the same
person he formerly knew, and tliat his face is
every day more and more familiar to him since
he saw him. Hays, he was reputed to be the
son of lord All ham by Joan Landy (a woman
who sold bread in Ross.)
[Cross-examined.]
Says,, he can't tell how lung it was before the
elsctiou of Itoss, that he saw the boy, or whe-
ther it was two or three years. Says, he be-
lieves the lioy was the older of il»e two, because
he was then bigger than the deponent ; says, he
believes the boy was then 10 or 11 years old ;
*ays, he does not kuow how long the boy con-
tinued ut Uuss, and that he took no notice of
the tiute ; knows his father had a lease dated in
17'.M, and that in 17127 he quitted the house
about Clnisimiis. Says, he belicFes it was near
the time of the election of parliament that he
kaw the Iwy ; says, he remembers more parti-
cularly his father's removing, because it was
more remarkable to him ; says, he believes
Joan Laudy lived in Ross when the boy was
there, for the boys used to say, there is Jemmy
Altham's mother. Says, he can't tell how
long the lessor of the phuutifl' was in Ross, but
knows he lodged him in his father's hay-loi\ ;
and when the lessor of the plaintifl' came into
Barret's house lie was lililc provided for. l>ein«f
luked what school he went to; says, he went
firel to oue Culleu to learn to read and write, and
after to one Piggot, who taught Laiin ; that he
iiiiX that .school, ar.d returned to* it asfain ; that
he was at I'iffgot's school when he knew the
hoy. Says, he was about eight or nine years
old when tie went to Piggot ; that he was at
Pig<rot-s school for about four or tire years;
that he went to one Buckley's school to learn
U ¥fr\\,% but canaut rcmeonber Vvow Vqo% Ue
was there. Says, that Francis Bvrel M
next door to the deponent's mother, i|
above him one Thomas Barret; nyi, Ag
the boy was just come to Roh when beai
him, and that his mother was not ibletoM»
tain him ; says, be nerer knew one Ediri
Lutwich, nor any of that name.
Elizabeth M^MuUen swon.
Says, she knew lady Altham when d»U
in Dunmaine, and the deponent then lrfil|
Ross, and ?iuted her lady ah ip once it Di»:
mame ; she belierea it was about three fi
of a year after her coming thither, btt(
be exact as to the time. Says, ihewmi
acquainted with my lady after she Ieft]|»
mame. Says, she saw her at captain BM
at Ross, and remained in Ross for three irfti
years, and very often visited my lady it hs;
she believes twice a week for two yetn. Sn
my lady went from Ross to lire in Dm:
that the first place she lodged at (wki#
came to Dublin) was, at one CavesifhVii
Stable-lane, near Mary 's-lane ; and tM|b
deponent seldom missed a week withuutH|
my lady, while she lived in Stable-lane: te,
she left Ross in 17 19, and came to Dabfii^a
lived in Uride-street for a while, but tauRtt
actly tell when my lady canoe to Doblii; M
deponent knows she went in a coach viAK,
Cavenagb, to the stage-coach inn in Gcoi|ri^(
lane, to l»ing[ my lady to Cavenagh^lo^n^
Says, she visited my lady, when sbeieM
her lodging to alderman King's, where ikfi
put into stupes; and one Dr. Irwin vis hf
physician ; and that the deponent osed MM
lier very frequently. Says, her lad}&iiipMP'
ed at Mr. King's for about a year, tad irteriM
came to lodge with deponent at ber iiows
Tashe's- square in Alontrath -street, wbeRii
continued for about eight or nine weeks, ■
from thence she went to England. Beiitf i^
ed if she discoursed very familiarly wiuif
lady ; says, she did ; and had heard ber v*f
often wish she had a child. Being asked *W
hiie understood by that ; says, she uaiknSB
ray lady meant an heir to ray terd's e<*
Being asked if she ever heard my lady W«
child by my lord Altham; says, ibe i«*
heard my lady had a child, and it \ras uie|^
neral reputation she never had a child. ^
she never saw a child with my lord at D*
maiue or Ross : that Mrs. Heath, 1»«^*^
and the deponent put her on ship-botrd. W
she remembers she was with my lady oo* jvj
after supper, as she was preparing to sw-JJ
her ladyship requested thede|K)nenltosfliJ*
the tirst account of njy lord's death ; tajsj
took the deponent by the hand to o«k« ''*
promise of it ; and said, that the depon«*"*
a faithful Irishwoman ; and the d^pooeo^T
nilKcd she would write to Mrs. H***\ ?2
that in some tiuie after when she betrd^?
lord's death, she waited for his funeralii'V^
served who were the bearers, and »ha**JT
ki
V
there were, and sent over an sccomtf ^
^^a^ ahft saw a boy at th« fiuiertli ^0^
Uchard Earl ofAngfesea,
A. D. 174S.
[1331
bat she turned hiin
s ; and asked hiin,
i your mother ? that
an Landy is my ino-
V lather. Says, she
ieath, directed to her
I John Weedon the
id .loan Landy *8 son,
iic funeral : says, she
le gentral reputation,
son by lord Altham.
lition was the boy at
»oked like a black-
vas surprised to hear
use she never heard
Id, except by Joan
iw him since.
lined.]
vith her father, who
J my lord and lady
ij before the separa-
leard that my lord
eman thither ; says,
r at Donmaine but
II how long my lord
e, but belieTes above
nbers my lady came
lies were just be^n
"emember the day ;
was acquainted with
lear the Cross, and
el Boucher. Being
cud woman ; says,
3d very often at the
ards the hill, when
unment. Says, the
itap at her father's
« in the year 1719 ;
nuary, and went to
I after in Tashc's-
recollect the time
Ts in Dublin ; says,
I Smitli's in Dubhn ;
I. Hofi^rs ; says, she
took lod^uj^ for my
ime of the person at
ivere taken. Betng
,1k when she lodged
lys, that she was not
nan had htr in her
^ heard of any per-
thild-bearinfif ; says,
id if she ever heard
ag her limbs, or did
ost them by a cold
f 8, she never heard
limbs, and my lady
f it ; and that she
e of her disorder.
1 Ross ; that when
.0 church in a chair,
> the pew ; that she
'f, and walked but
rehended a disorder
r. Butler's in Ross,
with her about it;
says, she believes it proceeded from her grief;
that the deponent saw her several days cryij^
for grief. Says, she never knew any such per-
son as Edwaird Lntwiteh a shoe-maker in Ross;
sa^'s, that one Allen was the best shoe-maker
in Ross. Being asked if my lady lodc[ed at
any other place in Ross, but at Mr. Butler's ;
says, she lodged at one Wright's in Ross, and
that the deponent visited her there, and was then
mmarripd. Being asked to whom did she pro-
mise to write, concerning lord Altham's death ;
says, she said she would write to my lady's wo-
man, BIrs. Heath, because my lady was sickly:
and because in all probability Mrs. Heath Y»as
likely to live longer. Says, she hevd of my
lord's death in the news, and in the elegy that
was cried about. Says, she believes it was
curiosity led my lady, when she desired the
letter to be written. Says, she watched the
funeral at the comer of Christ-church-yard,
and followed it; that h was about 10 at
night ; that she did not see the choir attend
the burial, nor BIr. Hawkins, kins' at arms;
that she does not know who were the bearers
or mourners, nor whether slie gave any ac-
count of them in her letter, nor whether the
scarfs were black or white ; but knows
that whatever she writ in her letter was
true, but has not read the letter since. Says,
she saw but one clergyman, and the rirger of
Christ church attend tue funeral, and that she
remembers the boy stood at the opening of the
vault. Being asked if she told any person,
within these two years, that she saw the boy
at the funeral ; vsays, she can't recollect that
she did. Being asked if she got directions
where to write to England ; says, Mrs. Heatb
desired the letter to be directed to her brother ;
and that the deponent gave directions where
to write to herself. Says, the boy did wear
his own hair : that two of the flambeaus re-
niained with him, and some others went away.
Says, she never heard that my lady miscar^
ried, or that she was with child ; says, that
she knows Mrs. Lenox, but never told her that
my lady miscarried. Being asked if she tokl
one Reily, a servant to my lord Montjoy, or
his wile, that the plaintin had a right to the
estate ; says, she lived with my lord Montjoy
as a servant, and with squire Hamilton, and
that she now lives with Mr. Lee, and that she
never said to my lord Montjoy, that the plain-
tiff was the right heir ; nor does she recolleet
that she told Reily or his wife, that the plain-
tiff had, or had not a right to the estate. oays»
she heard a runMHir that my lady had a cliild
in England. Being asked what was her rea-
son for turning the boy about at the funeral ;
says, because he said he was Joan Landy's
child.
Matthew Darenzy^ sworn to the Voire Dire.
The witness was asked by the counsel, whe-
ther he was not bound in several sums i'ur the
defendant, or whc^ther the defendant owes him
any money, which defendant will be di'
frno psyiugi if he loses hia «M^ \d^«
17 GEORGE II.
1335]
Court. Tbrap (iucMJodb miy be ubed no
cross- examJDJnff, but not on Voire Dire.
The wilnrsK vraa aiked whether he it not
nccirer lor lord Ani{te>M, which he will Uim
if the (iluintlff prenilt ?
Couruel for the Deftadant. A i
ezimiae his receiver, becauie he hu
interert, and especially if Dot receiver uf the
Unds in queation, hecante theo he is Dot iin-
inedittelj', bul consequential I jr iatcreated. For
the tame reasoo a tenant at will of lauda, nut
immeiliately in question, may be examined.
A man may examine hl« son and heir. The
heir at law was produced at Waterford before
.my lurd chief Jusllce Whiuhed, and it was de-
termined that be mi^ht be exumined, because
he had only a poKEJIiiliiy, and no cslato rested
in biin. And ao heir lias ■ more certain tenure
iban m sen ant.
Court. The (|Uestian is pnii>er on cmn-
The witness wan nsbetl a^-Hiii whether be will
■uRer iftlie defendant loses.
The wilneHs said, be acrcpted some of the
ddeudent'ii bilU drann upon hicu (tiometh ills'
less iban a lliousaml pounds) and that he has
Dot aetlled apcountt, but is suie he has the
fCreateil part of ihc money in hia hands, and
doea nnl apprehend that 300l. are due to him ;
ami atya, that the earl of Aogleaea dealt with
him aa honourably as any mau could do Milb
another.
Courf. When the particular qiicalions are
naked ref^ulaily, the p:eurrnl queslton cannot
lie asked ; but nevertheless it may be asked on
Voire Dire. A person's beintr a servaiil, is an
objection tii hia being a juror, but it caiiiiiil be
an objection to bb being a wiinets.
Mr. Darcnsy, sworn in chief.
Says, be hnew the hie lord Allham at Car-
fivkdulF, and con^nued bis ac(|nainlance with
him till my lord's death. Says, be never heard
niy loni Aliham say any thing of a child of
liis ; says, he saw a boy at Carrickduff at a
hurling, and that he was clad in red ; but llial
he had no riisconrsc with my lord alxiut the
hoy; says, that he heard that the boy which
he saw at Carrickduff was a bastard ; and that
he never heard my lady Altham had a child.
Says, Ihe lirst ul' bis acquaiulauce with iny
lord was, when my lord livetl at CarrickduR;
thai he dined with my lord at Carrickduff, and
that he did not see any bny dine with him.
feiays, he lived at bis ui'ilher''« Iiouhc wiltiin
three miles of Carrickrlulf, and never heard a
)vonl of my lord's having a child.
Jamn Mtdlicot, esq. sirorn.
8a^t, he knew Ihe late lord Allham in Kin-
nay, iji the enitnty of KJIilare ; (bat he kept
a pack of hounds, and that sonietimet the de-
Ceut used to go a hunting with bim ; that
dined tomelimes with my lord at KiDoay,
Mif^PVMlijnKf MHTr Annuleji'iUSAll^MJi.
Triid in Ejedvieta betneen J. Amaley, a^. [IS
Being asked if heat any time bid ay <m»
with my lord Akhaf ' - ' '
abonl ttal»
•ays, be reawoibcn m mi
Anf{letea title and estate; and iblarlil
said, he bad rcaMn to expect hesbatMkU
Ansleiea, and then added, Wbeo I M^
at I have no ton of iiiy own, 1 dont tattrit
will become of tbe estate, or if ite i—l
should have iL Deponent iays,iny I
useoftheaeworda, orto thatef^or , ,
Eiaya, he never aaw any boy at Iuaq,H
heard of any buy beiog there.
[ Cross . examined . ]
Being atkcd if he can remeniko' wimM
ditcourte happened i aayi, hecauDOINala it
where the iJitcoune happened, nor aWw n
iu company then. 8ayt, he bad m icfMt
SDce with my lord till he came to lire ■ b
nay. Being asked if he ever told s ,
this convsreauon within these two ywij^
says, he never remembered it till this ii^
■ays, he fell into some discount atteW
Curragh race, whicb brought tbe coi
of my lord Altbam to hia memori ; ibilbl*
members my lord made use ot these m^
As I have no son of my own: atlnMMM
as tbe deponent can recollect, that *Hi<
meaning and sense of the words. Stj%,\l
had no conienration with him about ba Uli
and Ibat Mr. John Annealey was n; M
rclaliou.
Colonel William Beektt sww
Says, he know the late lord AllhiBiW
JO years ago; that he first knew kn»»t>
my'lard luilifed in Eisex- street, soil lkll|>
ktiew him in Incbicore; that he tatitm
with him several limea, and remenibe«ii'2
were some animosities between mj W ■*
his brother, and that my lord atiJ, he*i*
bis natural sun had been a legiiimaie '^*
cut the scoundrel his brother out of ibr .tifr
seaesute; that he never heard till of lU^M
my lord bad a Iccitimale son, but it "•*
ways reputed in the country, be had a to"*
SOD, and no other.
[ Cross- examineil .]
Being asked where be waa fast acygj
wiib my lord ; says, he was first wi*jS
with my lord in Essex-street, and Ihii *■
acquaintance never broke off; d>*l .'''^
him at his lodgings, and dined *>>■ *
there; aiidlbat hesaw him at iDcbiw™!**
be was sure he was not a whole J'*f*rJ
seeing my lord Altharo, and that he '1*'° fr
my lord in the fcummer.houJe»iVia'',*'r
be lodged in Esses-street; that he "V ^
seen my lord from the time be u" •*
Vice's, until be saw him at Inchicore. "n
asked how long it waa from lb« 0**'^^
lodged at Vice's, to the lime that be IMP^
Incliicore ; tavs, be belierea it niwbt Ml
AMa, ^iahirat^ U have ai
ami Richard Earl of Anglesea.
ton and one CiiTtnagh wftc
was al night before supper,
lour ; thai there was a botlle of
Iwl of punch on the Ulile, anJ
inl (ta^it till three o'clnck next
lag uliei], nhcther miss Gre-
^ ; Mys, he was lold ihat miss
latioti of my lord, was in ihe
was not present.
rth Harman, esq. sworn.
I very well ftcqitainied itilli Ihe
n, ff^m the year 17H0r I71S,
when hs lived »l Kinnay ; Ihm
besriJ my lord it liis own house
t harl a child hy his wife ; thai
very often «peak of a haslani
Bly lord ttaid, he could not tell
bis own child, or his brolher'a,
I'd ; and when my lord would
the subject, that the deponent
I, Why do you pester toe, io
your "bastard son? Why don't
wife, and ^el a child hy herP
■nswered, FTugfoe un the h— ch,
le, and ihai Ihe deponent heard
itly s|ieak ID I bat purpose.
^C roM- ekamined. ]
I not Vnow when my lady came
n ; lhat he became acquainted
Altbam immediately alter lie
itt%Attm\ tlint he cannot tecol-
' ' diacoiinc with Mt. Med-
lir ; that lie never saw my
rilh bis lady, nor iluei he know
I Altham lived at the queen's
jal at the queen's death the de-
t Dawinn'S' street, and that he
(mtpnaliou with my lord when
■t Kinnay, near ilie Curragh.
t saw the boy, and believes it
iiMn'* death, that lonl Altham
lerwardt sworn in chief.
if he knew John Pureelt the
he knows John Purcell the
son, aod thai John Purcell is
tenant. Says, that Purcell, the
l«t to bim that he was sum-
mdcnce, and asked, what could
M the father related the trans-
''boy, and said, he happened to
U, and saw a boy there with a
nil bia middle, who laid he wis
iltham'si and that Purcell then
woald speak to lord All ham to
'at ; Biid that he would haie
apprentice, but said, he hoped
bom to better fortune. Says,
Puree II, one thing vuu lold lue,
I did not tell mo, about seuiog a
V^ift. 8*yB, be coiJit uol
A. D. I7«. f 133S
charge his memory, that the r^lhei- said any
tbingaboiit the variations of his evidence.
[Crou-«ainine(l.3
Being asked if he believes Purcetl to be an
hoDCSt mail ; says, be believes he is.
Mrs. Hannah Shan; swotn.
Bein^ asked if she knew one Calharioa
M'Cormuck; says, she knew one Catharine
M'Carmuck that pa|»ers rooms; lhat she came
to the deponent about a year before to paper a
room ; lhat she then said, she had a comical
diacourte with a young man, who used to go
about In iret evirfeuces for Hr. Annesley ; aod
that she told him, lady Altham never was with
child, uor had a child, but that women used (o
quack with her with herbs. Says, thai
M'Cormuck farther mentioned, that she de-
sired liim not to call upon her as a witness, for
lhat my ]ady never had a child ; and she
could not do them any service by ber evi-
dence, but that she would make against tbem.
Phititiff called upon Io reply.
But Mr. Daly first offered Io give in evi-
dence, a record between the earl of Anglesett
aod Graham on a speeial verdict, which found,
that Arthur lord Altham died without issue,
and relied upon Hardress 473, that a remainder
man shall lake adranlage of a verdict for the
panicular tenant.
Mr. Broadilreei. The notion io the family,
lhat lord Altham bad no son, is material.
Court. Thid record is no evidence againtt
the lesKir of the plaintiff, nho is no pnTly
Serjeant itarthall. My lord, tbe^nllemea
have by their defence, made it necessary for ut
to give some ntw evidence. It has lieen in-
sisted on by them, and they have endeavoureil
to prove, that lady Altham was at tho spring
assizes 171.5, at Wexford, without any appa-
rent sign of pre^ancy ; that beiog a new
point, your lordship will ^ive us leave to con-
trovert, because the credit of the lessor of the
plaintiff's birth may, in some measare, depend
upon it. They have gone a step farther, and
have attempted to impeach Ibe credit of Joan
Laffan ; we apprehend it will be material to
defend the character of that witness, and to
■hew that some of the wilneMes produced on
their part, have been prepared lor this trial.
Cirwr Coklough, esq., sworn to the Voire
Dire tuid then in chief.
Says, be has seen the lady Altham, and
knovvB Mrs. Giffard. Says, he remembers the
trial of Mr. Masterson, «nd Mr. Walsh, for be
was at the trial at Wexford auizes. Says,
they were indicted for enlisting men for the
Preleoder, and they came off with honour,
and shame Io their prosecutors. Says, be took
as much care as he eould to aee justice dona
them. Says, that colonel Toplady was hi^li-
sheriff. Wav«, \\«, i(W4 wA TeTOe^ViM \a^«**.
seenbily UtliaiBa.Xi^axuKiWt*^^^^'^^
Irialfl ; njri^ be mtct «w a lady at inch
triab. / BeiRH^ atked who was theriffthe year
Wfore Mr. Toplady ; Mye, be kioked in the
•ffiee at the eastle, and foond Mr. Edwards
was sheriff the year before Mr. Toplady,
[Cross-examined .3
Being asked if Mr. Walsh and Mr. Master-
son were related to one another ; says, one was
uncle, and the other was his nephew. Being
asked if gentlewomen do not sometimes go to
the assizes ; says^ some gentlewomen do go
sometimes. Being askel what was Mrs. Gif-
fiurd's husband ; says, he was a justice of the
peace, but a poor man ; says, he would hare
taken notice of lady Altham if she had been
in court. Being asked if he believes Mrs.
€Kfiard can be believed on her oath ; savs, he
cannot form a belief whether she can be be-
lieved 'f as circumstances happen persons may
change, and that Mrs. Giffiurd is very poor.
John Huttey^ confronted with Mrs. Heath.
Q. Do yoa know Mrs. Heath ? — J. Hustey.
I do, Sir.
Had yoa any conversation with her about
th& plaintiff being, or not being the son of lady
Altham ?— I had.
How long ago is it since Ton had the con-
versation with Mrs. Heath?— I think about
two years and a half sffo.
Give an account of what passed between
you ? — About two years and a half ago, I went
with a gentlewoman to Mrs. Heath^s to drink
tea in Holbom, within 30 or 40 yards of St.
Andrew's church, and as ftlr. Anneslev was
the Gommon conversation of the coffSee- booses
much wronged or injured*? — ^
the young sentleman was verv
and that nobodv knew better tli
she had lived long with the li
mother.
Pray, Sir, had this Mrs. Heat
concerning her coming to Ireh
expected any thing ?---She sai
she should come into Ireland, I
member that she said she expec
it would have been very impni
tell me so, if she did.*
* According to the " Genui
Mr. Hussey, upon cross-examii
'' He came to Ireland the btl
and lives at a place called P
Rath-C!offee, in the county of
he saw Mrs. Heath several timei
acquaintance with her was ab
ago ; says, that he told several
oonversatioo ; that he spoke of
in Smithfidd ; that he spoke of
bouse ; that he believes he mi
and then since bis coming to t
be told it to some gentlemen in '.
coffee- houses. Says, he never
Kercher till last year in the
bouse ; savs, he lodiped in Oran
St James's, in London; says,
vant to one of the yachts, ana s<
in linen. Being asked who wa
when Mrs. Heath spoke to hi
Mrs. Simpson, and a young gen
lodged lip one pair of stairs, wer
and that deponeot had seen Mrs
that in company with Mrs. Si
and Richard Eatl ii/Aiiglaea.
A. D. 17+3.
V> Uary Heath ev/ora.
hnili, do you know Ibat gentle-
rn lh«re ?
Y«, I liBVP Been him serenl
Bember about tno yean agti, that
i St jour liouie, triih one Mrs.
Be bu aefbrBl times.
A leK iritb yon after the HDConnt
IJng Mr. Aaaeeley ?— He ba« le-
Iben, whether you had erer any
'irilh him in relaliunto the plaiii'
I WM it you said i' — 1 have seTcral
[ about ii, and said. What a tile
io lake away the earl's right, and
■Iberer waa with child ; and I can-
Itoeif yuu rack metii dcnlli.
'\vc you koonn IhBt Mr. Hus-
fcer three years or how long 1
^ bnneen the I
ji last coovenalioii, becauxe she
Krned foe Mr. Annesley ihe first
JBVersatioo was about Il!r. Ad-
pore lie rcraembered llie Hordi,
pre the meotioned lady Altham
,_ Says, he was employed as a
peol the yachts by the Board of
I Being asked what religion he
W be woa a Roman Catholic. —
pi tlie affair Isllted of in common
^uys. he was introduced to Mr.
n, lie heard that his name naa
I'm court when Mrs. Heath was
Peing asked how lie heard what
rore ; says, he heard it by a ae-
U lays, lie was brought into tlie
ue witnesscH were by the person
lim nilh the siibpceu'a ; aays, he
iand went to Jue's ooflee -house,
where he was,~nussey being
the knew before last Thursday
be examined ; says, he did not,
i whether he look any notica to
file second lime, when he found
^er mind ; Eays, he did not take
0r did he mention any ihiog' of h
ffukei by defendant's counsel why
iprefent perjury; says, he did not
«bout it ; says, that Mrs, Heath's
a be examined for lord Anglesea,
ml think she changed ber mind,
fwhelher be believed what Heath
IVt contersstion In be true ; says,
nv that he believed it to be Irue
f the first couversatian, but gave
(DublG about it. Says, that at the
iMMnd conversation he did not ra-
Was said at the lime of the first,
n was since llie second conversa-
TCcolkcted Ihe first conTersation ;
pa of it before, and therefore rc-
, be sjioke of it sef eml tiiuei
Can you say anything of his character? —
I can say no more Iheo thai some ssid he wm
a geiillt'man'E serrant, and some said be lived
by Kaming.
Do you beliere him an honest nmn f — I caa
say nmhiDgof him ; but if he saya that I said
my lady had a child, 1 cannot say he ti an
honest man.
bid you ever say that nobody knew diat
Jroungman'taflkirB better than you?— No, mr
wd,! never did.
Did you ever giTo it, in his presence, as a
reason why you should know the ynung man's
affairs, that you had long lived witb lady Al-
tham, his molber ? — No, my lord, I never did ;
and if I was to be torn to pieces, I vrould say
no such thing.
To Mr. Huuey.
Q. Repeat the words you heard her say.
Hutity. She told me thai the duchess of
Buckingham had sent for ber herself, and 1
cannot say who introduced the conversation
first; but nlrs. Heath said. Poor gentleman, ]
am sorry for him from my heart ; for no one
has reason to know his alfUrs better Ihan I do;
for 1 lived long with lady Altham bis mother.
Mrs. Heath. By ail that is good and givat,
I never said any such word ; I never thought
thai yoji were such a man ; I have heai-d people
I
ac-an
odd way, but 1 could never believe it till now,
but I always took your part, and said you be-
haved like a gentleman.
Huuey. I am a gentleman, 1 can bring bt'
veral people to justify me lo be a gentlemaD,
and a man of family ; indeed I hate heard you
say it, and sjieak it with all the regret and con-
cern imaginable.
To Mrs. Heath.
Q. Do you remember the time that lady Al-
lliam Weill to VVextbvd assizes ?
Mrs. Healh. Yes.
Was ihal for the trial of one Doyle?—! Ov
not know any otlier that was tried but Mr
Walsh ; my lady came home and io|d mp how
handsomely Mr. Walsh pleaded for himself.
Do you remember what day of the week it
was yiiu went to the assizes? — Jndeed, my
lord, I do not.
Did my lady Altham lodge at Mrs. Vice's
mure than twice? — No more than twice.
Would you be understood then, thai the first
time was when she came from Dunmaine, alter
she went down from Mrs. Briscoe's.' — A little
before the queen died the first time was, and
the second a little before king George's birlh-
Wbat time of the year was it after the king's
birlb-day that you went into the country ? —
ISomelime in tbe summer.
Did you ever come up lo town after the se-
paration F — Not till the lime we left Rou.
Were the assizes began before you wetilto'
Wexford, or did Ihey fe^in aller ?— I belie?*-
IdoD'Iknaw.
1313]
17 GEORGE 11. Tritd in Ejeameitt beheem J. AnnuUy, wy. [m
Do yon kaow one Hr. HigginioD, Ibat wu
---r to Arlliuteul of Anglcwaf— No, I
S*]^, beknetr thelalelordandlaily Allham,
ud Ibat lie kncir Arlhar the late earl nf An-
gleaea ; MVi| thai be wu rccdf er of ihe late
WrI of Aagleaca'a nnla ia the county of Wex-
Ibrd Ironi tbe year 17 tl, to (he year 171S, and
Ibalha knew lady Altham Id 1715; that he
mlleGted KOta at a place called Cloniniea in
1715; that the Thniaday belbre Easier he
went lo CloDimec to no to nerfnril aseizea, and
llial be neot the Tuesday alter Eailer Sun-
day Id Dunmaine, and met (hi^rc John Weeden'a
Trife, and one Taylor, and aomciuhcr lerTaatt ;
aaya, be enquired If my lord wan at liunic, but
was loM be itbh g'one abmaJ ; aayi, iny [lUy
came down, and lliat he taiv licr at the back-
door, and remeiubera llial khe wns bif; betly'd,
and that she K3ve hini two i^tasiies nf nliite
wine, and thai lie drank tu lier ladyship'* ba|fpy
delirery. Saya, he went lu inajnr Roi,'era's in
Enniicorthy, and went from Ennitconhy la nne
Hayca'a, who IiteiI between Enniicortby aud
Wexford; and Thunuiay murnin);, which was
the Thumlay alter liaster Uunday, he eame
to Wexford aiiizea ; Kaya, Ihal Ihe ■pring' aa-
siaea that year bc^n ud Saturday, April the
16lh ; says, be saw atima tenant! of my lord
Anglesea there, and received wme mnney from
Ihcm. Being asked if he could remember
what dress my lady had on ; says, he remem-
beramy lady Alibam had on a white ajjron, a
white band kerchief, and a striped (;u»u.
Says, he paid money to lord Altham in WeX'
ford, and saw his roachman; says, lie n-as at
the Big Inn, and had cue pint of white wiue
there; says, he lieard afterwardi that Mr.
Walsh and Mr. MaKicrJion were tried at Wex-
ford, Says, he paid my lord 28/. rent, which
deponent's son receired at the Nanny-wnter,
in the county of Mcath, which is part of my
lord Altham's estate. Being asked if he en-
tered all the money Ite reocifed uf my lurd
Aoelesea's rents in his book ; says, lie did,
and made an entry every day in his bonks of
what he received ; says, he received 10/. from
Sirs. GIRard on Thursday |^ini;luClnnimeB ;
that he received -1/. from 'Mr. Tli-jmas Hough-
ton ; that ho received Ihe 33/. at Eniiiscorthy,
Wednesday in Easter week from his sou (ex-
cept 14t. expenccs) which the deponent paid
my lord in Wexturd. ijayii, as benasguin^
lu m^jiir llogcrs's be met his son.
[C ross -examined.]
Bcin;; asked what day of the month was it
he came to Cloiiitnct ; says, on Thursilay be-
tbre Easter Sunday ; that he was backwards
ud forwards In and from Clonimcs fur three
days ; that he lay at iMr.Sutton'N every night;
that he went to itir. Houghton's on ftlonday,
and returned to Air. Satton's at nigpbi ; that be
went firtt to Uunmiinc, and aHetwarda went to
i
Ennitcotlby ; that he liad no bminaKlW
maine but in order to pajr hi* caiapliwta ■
my lord, and, if hemct hiin,laldlhBMdk
that Ihe deponent'a son got lheauantt£
Nanny-water. Says, lie cannot till sUi
Dunmaine be the neareat roadfrMaCWH
to Enniscorthy ; and denonent sayi, ihiild
Anglesea said there would be many jrOai^
to his estate, and desired the depoantnln
tenant to Ur. Charles Anueslcy.
[DeTendaul's counsel desired depoatatltlai
over his papers, which he accordi^t CI;
and then mentioned paiticular times dTIb*
ceiTinr some rents: That he recdiidrak
from Mr. Tfaomaa Honghton in IT
Ihe best of bif memory received 1/.]
n C»art,*
aUWek
isiaes ; says, he does not remcmba u tot
Then Biggiioti being again iateinj,iKd,
Says, he could not tell the day ofibrsKtlt
received Hnughlon's rents ; layi, br reoM
Gitfard'a, Houghton's and one SdUds'i n<
within three dajs time ; says, he briipni
was after the 81st of May. he lay U Bsi
That be lay either at one Drovnii;'* w
Boucher's. Being asked llie panicahrM*
ner of bia eniering the receipt of the rtriH
■ays, he entered the particular day it ^
month on which he received the monry. !!iii>
he very ofieii lay at Dunmaine brfurcihtMi
of his going to the assizes; and liyxst'
nights at Uunmainc before lady iMihtmaM
thither. Says, lie called at Uiioniaise u*-
quaint my lord that hiisounould jisyilinB^
uey. Being asked if he made an earn' rfM
niuney ; says, he is sure be made on rati} ■
that money, and took receipts, and bwM
that entry, and believes it was tbe ;■!<<■
April. Says, liie money was paid atwatMS
Ihe morning. Says, lie Iii'lieres he uhM'
Dunmaine far iwo years belnre that lisr,'
was he there afterwarils. Says, livilidsax
my lady at Uuiimaine befDre that liiiir,himf
heral Itoss. Says, he renived InrH Ailmt
rents a lung time in the county oflln^,''
did not recdve tbe rents at Ku«. Sml*
paid sniue pari uf the rents tnu aids l rlui^i
llial he wa.1 hound for 70/. and lo»t 2J'.*I*
Says, be surteyetl lands li>r earl Jann-i. >■
earl Artliur. Says, that in Jtinc or Jnl.v '-^
it wus aaiil in tbe pre^ent'e of the \ilr |^
Ani:lFsra, that lord Altham had a sail idJ M
Au^le»a wished he hnd iinc. »iii(, he
ceil cd a subjKnna to apiiear on ihi* laial. Un
asked if he heiieveil Mr. William kiiipj>rlil'
I, or that be wiinld Hintiinr lif
aril; says, In: holiuve?* .Mr. K.n:i|>[ifr l")*'
honest niiin, and ihiit be belicvid au kMrf
nnuhl liiiswear himself,
dunci JjiJ'lui nas r:ilW to suliji*'! 1^
Gillard's character, and lie was iiMil V^
idanlD couQsd. Whether be MittffW
^]
and Richard Earl ofAngleiea,
A. D. 1748.
[IS46
ii could be beliered upoo ber oatb : col.
u aoswered, that he believes she may be
ed upon her oath.— The ptaiatifiPs coun-
ereupoD a&ked oolooel Loftus,— Whether
Lamoert could be believed upon ber oath :
id, he could not take upoo him to say how
nan could be believed, that lived in the
she lived in. — And thereupon mentioned
liiog injurious to her character.
re ends the ninth da^^'s examinatipn of
sees, in this cause, on Monday the Sist
r November, about eight o'clock at night.
tbe Court, by the like consent, as usual,
I was signed by the parties and their re-
ve attornies, and read in open court, ad-
ed till nine o'clock the next morning.
e Court met according to adjournment, and
try being called over as before, answered to
aames, respectively.
William SUphens, sworn.
ing asked if he knew Arthur Herd, and
ler he had any, ami what discourse with
says, he knew Arthur Herd and saw
vben Mr. Annesley came to the Bear -inn
iniscorthy ; and that he then asked Herd,
itrangers those were ; that Herd then
This is the right heir to the Anglesea
^9 if right would take place.
[Cross- examined.]
af asked whether he said that Herd told
y Altham had a child ; says, Herd did
•y that lady Altham had a child ; hut de-
ic taysy he met Herd in the street, and
Berd told him he (Mr. Annesley) was the
g lord. Being asked as to Herd's cha-
r; says, he never heard but that he was
aiiesi man, and believes that Herd may be
red 00 his oath : and deponent said, he did
s^ the young lord at the time that Herd had
liscourse with him, for that he was down
an King's at the Bear. Deponent says,
Iked of the discourse he had with Herd to
Bartholomew Furlong, who lives under
el Richards, when Furlong was sub-
led. Being asked upon what occasion he
t to Furlong ; says, because Furlong said
Br Herd was a material evidence. Being
I what Furlong told him ; ssys. Furlong
him nothing. Being asked what brought
lo town I says, his horse brought him to
•
"he deQ^daot's counsel made some re-
'M 00 the indecency of the witness's an-
i CO so folemn an examination, and then
Me hone was bu own; he answered, it
not bhi own but lie hired 'it: And being
i who hired tbe horse for him ; he said he
l" ool Icll, he found the horse at the door ;
M Imi weaMTfcd with a MbpflMUt by one
>L. XVIL
O'Nei), but that he had no discourse with
O'Neil about giving his evidence. Being
asked what business he followed ; he said, be
kept a public house and a shop in Ennisoorthy.
William Houghton, sworn to the Voire Dire.
Says, he has known Arthur Herd very well
these fifteen or sixteen years past; that he
happened to go into Arthur Herd's shop about
a wig, and had some discourse with him, and
heard him say Mr. James Annesley was the
true heir to the estate the earl of Anglesea
possessed, as he verilv believed, and that be
knew him from a child at Duumaine and at
Ross.
[Cross- examined.]
Being asked if he made use of these words.
That he knew him at Dunmaine and at Ross ;
says, he did. Being asked where he was
born ; says, he was born at Ross, and lived at
the town of Enniscortby fiAy three years next
Candlemas. Being asked how he came to
ffive his evidence here ; says, he heard of a
letter which went to Ross, and that tbe letter
was the sole thing that occasioned his coming
to give his evidence, and that he came of hu
own accord. Bein^ asked what he said to tlie
letter ; says, he said he would do all the jus*
tice in his power to Mr. Annesley ; says, he
had no tboughtii of coming, but that his con-
science pricked him, hearing that Arthur
Herd bad given such evidence. Being asked
when it was he resolved on coming to give his
evidence ; says, when he heard it was going
bard- against Mr. Annesley he had thoughts of
coming. Being asked what the substance of
the letter was ; says, the letter gave an account
of tlie trial ; that the letter came to Mrs. Sinnot,
and as she was talking of the trial, it was said
that Arthur Herd turned tail to Mr. James An-*
nesley, and that that surprized every one.
Says, that it being told about that Herd was lie-
come an evidence for lord Anglesey, deponent
mentioned that Herd had formerly declared
otherwise ; and deponent said, that hearing of
Herd's evidence, be did recollect what Herd
had formerly sai«l. Being asked whether he
knew that he should come time enough to give
his evidence ; say a, if he did not, he shouki
know the road baick again.
John Ryan, sworn.
Being asked if he knew Mr. Dowoes, and
had any converaation with him about Mr.
James Annesley the lessor of the plaintitf'; saya
he knows Mr. Downes very well, that Mr.
Downes told him in discourse, that lord Altham
said to the chikl. You bastard, get up and salute
the man who made you a Christian, and that
he should get 900/. for giving this evidence.
Deponent said, it was on a Sunday in the
summer or harvest last was a twelve month
that Mr. Downes said those words ; says, that
deponeot then told Mr. Downes, that he was
old, and bis memory might be treacherom^
whereupou Ur.DoNiutft v^^^ \\ax^i« ^wi^
4R
MBtt] irOBOIOBIL Trid in^Efmhmd tttmm X. if ■wJf i, if.
B«i«gadBri boir loag aflir WeifM
■pylori wwiHoPqMia; kiiMM,mylQvi««il
dwQt Uim wttki or a BMDth, biil it «ol fove
tM B^'My vmIIImii ; be mhI» he MievMi
il iVM^Ihiiyftr after UMRebelliM Im M JXw-
naloe, «M WM cdoaniped in fiydii Ptefc. .
.2Wni^ wMCCWDWid M to lady Altiiam'b MiV
alWeifoid
fia rtM^'tfial bfl ofailoukaty IcNpd (viiy to
tta itoitaa Ui a ebaiioi^ aid Aat'thcra awe
fwo atrvaaAaak^f with lmD» hat thai ha «iw
Ma waaMtt aUag with hin | ha laid ny la4y
WM at hoaMp aaa thai ha #aw har al hoflia after
«y lef4 w«M to tha aMMa. BmgmkaiW
ha haard af any rctaarkabto trid at Ihi lawait ;
he laid, h« biliefaillir. Wakh and aooM othar
Mnona wwa iadifltid tbera. Bainffadkedif
he raneoiharad tlie ecMpaa; ken&slMdid;
thai ha Miavtd it waa to the year ha was
jnprriad, and ha tfaoMfht it WM to the bigto-
Bipir aT auauMTy and that ha believed itwM
after Wexfiifd aMUie. Betogatbedifbadid
TOMwabir where he waa at the time of the
eeBpoai heeud,thatatthetinieaftbeeolipee
h^waabftweeoMpglwry and Wezferd, neor
Mr. Ooleleiigli'^ hot that he doei nel reoMQ-
her what area hie boiineei- tiboe at that tiaM^
' The Cowt entored Mrf. fiMrief ^a Cok and
Mia. JKartAi, to ooofhiot eoch other.
TiMflO-fiMfA.
Q. Mn. Heathy yen aud, aaweH ail re*
nMnbar your ttttimooyy that Ralph waa botler
atDunmaineP
Mrs. Heiith, Yes, when I fint went down.
Can yon reoollffst bow long he oontiqued
there P— No, but I remember be went away
when we were in Dublin.
When P— -The but thne that we came np,
You mentioned thatyoo taw the fire-workt,
the fint birth day of bing George the fint,
from captain Annealev's iMgings P->«1 did.
Had yon left Rolpn in the country then, or
had yon not F — ^I left him in the country, m the
honae.
Did von find him in the boose when yon re-
turned r — No, for my toid hired a butler m
DnUin, one Cbarlea Magber, and sent him
^wn.
Waa be sent before my kdy went bacbP—
He was sent while we were at Mrs. Vice's, and
Jured there.
Was there any account that Ralph had
quitted the frmily before Magber was hired ?
«— 1 cannot tell ; but there was a aoarrel be-
tween Rolpb and the gardeaer, and he was or-
dered to quit it.
What time of the year did yon go back
with my lady to DnnmameP— ft was aborea
year we stoyed in town.
Did Magher act as butler daring that time P
«-^He did, my lord.
Yon ceme orer with my lady from Sag^andP
Yen first aame to the hoQsa eC OMtato Bris-
«^fiin/-rF« flMM thrn to^l^p.
Wbiiw'did' yon go kMaoMs^ d
left ca|it«n Brisooe^?— We wcatii
Donmame, and got thenonCUtMa
Did net yea ^ firet into etbwto
*^ We did not go at all to any hsemti i
ToMin.CMr.
Do you remember the time of My I
coming to your honaa, whan the icsM
hanpenedP— Mn. Cols. I do.
What becaaM of my lovd lai W
wardiP-^Tb the bmit af asy knsvM^
did not stoy to our hoitee abate ftoi
days, and they went and teekkUeV
▼toa^a.
To Mra. Hsaf A.
Q. Do'Ton knew thto gentle wsbm
Mrs. mUL I do renMmbcr bsr.
ToMra. Coif.
Q. Did yon ewn mit, alter tbij
year honae, while they remained in to
Mra.Cble. I eannot tell, Imt I U
miffbt. .
Re^Mllsct Tonrself and fix, wbctba
cyertam that they went to Vice's, or a
nlaoe fWnn your fhther^P— ^Indeed, i
I beliofe thrf went to Mrs. Ylee»s.
Canyon oepositire that th^ tote
other house in Dubtin but your wk
Am they left DubKnP— 1 am poaitite
What do yon fbnnd yonr opmion i
beliefo I bare soon them In Duyia.
Well, but what reason liave yea
they went to Vice's before they weal
maineP— The reason I canrecotted
after my l<nd aod ladv came togd
fiUber was still uneasy, thoosh tbey w
together, till my brd took her to a k
bis own ; and be tbougbt if tbey weal
at aome other place, it might have a b
or air of a reconciliation.
Did you understand your father to
that, that it would become more puMi<
lorious to mankind, that 'lord and ladj
were really reconciled P — ^Yes, I ^
stand that to be hb meaning.
How long was lady Altbam at ye
m the whole f — A month or aix wed
my lord came and was reconciled,
sMf e four or fire days after the recoi
at our bouse.
You remember tlie time of your goi
to DunmaineP— I do.
What tioM was it P— It was in the ^
Do yon remember any thing cones
lady's being indisposed there?—- Yes^;
Tell that again.— There was snaeci
pened, which frightened and fretted
upon which she became iadisposed, i
member a servant's being sent up by
to desire ray lady to ooose to snppo^
mother was with her two or three Ihi
her, and yet ahe excused herself.
Poyou remember any thing thitl
upon thatP— My tody nSssMrisdLr. .V
Whansa th«t Mltoaintto|Mpi
HMk . ^^ea
and Richard Earl qfAn^kaa.
A. D. 1748.
[ISM
ne P— My motbtr was calkd up
? — By Bin. Hetth, who cftme
•r's room, and nid, For God'i
, 9et up as sood at yoa can, for
ceediDg ill.
To Mrs. Beatk.
remember that ftct f
. No, my lord, there was no soeh
ed, for my lady nerer miacarried.
member that you called up Mrs.
aniffht?— No, 1 iieTer did; I
hat I ahoold oill her for.
ver tell Mrs. Briscoe that your
scarriedf — No, for if 1 had, I
did a folse things; and I nerer lay
ly house in Dublin bat captain
we came to Dunmainew
To Mrs. Cole.
on, aAer that time, in my lady's
P— 1 was.
lAer ?— .The next morning.
To Mrs. Heath.
ie in my lady's bed-chamber the
?
•
\. I do not know but she mighl,
always breakfasted in her bed-
To Mrs. Colt,
ras it that shewed to yon that,
ok to be the abortion ?
My mother, my lord.
I Mrs. Heath then?- ^Indeed I
bether she was there or not.
ere you when my lady came into
xras either 13, 14, or 15, 1 cannot
« yon now ? — ^I beliere I am either
vere you when at Dnnmaine?— 1
e I was either Id, 14, or 15, 1
!Ct.
smember how long^ my lord and
in Dublin after they left your fa*
before they went to Dunmaine ?
ong: I cannot exactly tell,
lee them in that time seldom or
nnot tell how often.
To Mrs. Heath.
y ladv keep her bed, or not, the
. accident of the sancersP
h. No, my lord, it never disturbed
vras glad they were g^one.
keep her room the next day f —
To Mrs. Cole.
ly lady keep her room the day
. She did, and for some davs after,
butler when you were there f—-
e nvideoce for the plaintiff on the
hwwdy Mr. Scijeant Marshall, of
4hn i^i^iifctMP itatad the *itU of
Here both parties, plaintiff and defendant,
dosed their eridenoe about 6 o^clock on Tues-
day night the 28d of November, and the
Court expressed great surprize at finding snch
contradiction between the plaintiff and defeO'-
dant's witnesses; and tbie Court and jury
being greatly fotigued with this long trial, ad-
joumM to 8 o'clock on Thursday morning
following; at which time it was agreeil by
plaintiff and defendant, that three lawyers on
each side should speak to the matter. The
consent for a^umment was signed as usual
by the plaintiff and defendant, and their rr-
spectire attomies, and read in open court.
And thus ended the 10th day's examination of
witnesses in this cause.
^ovem^er 24, 1743.
Thorsday morning, half an homr pest eight
o'ckKsk, the Court met according to adjourn-
ment, and the jury being called over, answerai
to their names respeoti^y.
Court. Thb day, ^tlenien,benig appointed
for counsel on both sides to speak to this causey
which has so long taken np the time of the
Court, and prevented the progress of other suita,
it is hoped you will finish speaking to it this
day. — Mr. Prime Sajeant Malone, please to
begin.
. 8ir Thomat Taylor^ Foreman of the Jury,
Mv lords, my fellow jurors have directed me
uHcnow what they are entitled to if they find a
verdict, and hope the attomies on both sidee
will settle that matter.
Arthur kurd Altham, from the wills and codicila
of James, the first eari of Aufflesea, to ahew that
Arthur lord Altham was otdy tenant for life ;
the counsel for the defendant having insirted,
that he was tenant in tail under, the said wills
and codicils ; upon which the wills and codi-
cils were in part read.— But the Court were
pleaaed to interpose, and said. That this was.
a question of law that might require great
consideration, and was not necessary to be de«
termined at this time ; the only material point
being, what waa the opinion of kird Altham
concerning his title ; that is, at the time men-
troned by col. Wall, in hb evidence, (which
was, that he never heard lord Altham had a
diild by my lady ; for in 1795, counsel gave
an opinion that ne had an estate tail, in the
remainder of the Angleaea estate. Col. WaU
told my lord, that he could sell the reversion of
the Anglesea estate better if he had a son,
for he conkl by a fine bar his issue ; but that
he could not bar the remainder, net being in
possession; and that he often beard my lord
wiah he had a legitimate son ; and that
he had an illegitimate one) therefore Nvhe-
ther Arthur lord Akbam conaidered himself
as tenant in tail, or only tenant for life, of the
Anglesea estate, for, according to his opinion,
concerning his title in that eatate, it was bia
interest to own or disown his hiving a liwflill
JPormcr £cU(i<m%
IMQ; nOSQIGllI. Tridm
CbMrt. nil rar ptMrJ^-ChU Ifr. CM.
»tB iHinny Ifcr Jh« jUMt, mt Mr. Itm^
JBwmw^^Mnv Ar th* OriMW; ud
^JlfaMrifcaimrbns teirad to hM«
KllK th^ tn adU 11^ if «7 kkg b a
nriigti iTfcUi Ihg Cmrl tWoki ^kM.
TIm MMMtiM itlwiM •ami, thm Mali
lh« HtailMos.t wUBb «M tote mU AMlive-
iy ^ bott pwdMi nUiiliC ni MMhL
lU daiMnt. n* BHlur. m yiiHii, qy
1m4i, kM token vp « iBMh of nw lofMhs'
Uti, ihd rfith« gwMlwii of >B» jOT.lUl I
MmU bs u MwiM u I CM, aad hop* to MtWj
■ho JHTT, ttot « ndiBt PV>t to be RmmI fai fc.
vwB of Iha AtAaM mr cUtat But if I
■hoidd boBMO, mj mdt, to tooeh wm any
4ih«ilhM£M*aMft7 AcwioMd (« lEta •«>
bto MM tttcnM viih noh anuiflidi* bf
«MMeN)|wMUntqM yoor kriiUpi^ia.
' fti Mc ^QNfiM, «7 lordi^ boAn Ihe
jMatiff, Hr. i«toM Aaanin, fa, ork ml the
(l^riate «• of lh« kto Aidwrtwd AUIkto r
n* phdiWa owtonl bus van bMuoM.
Ij AhhI oat Ihiir OM*; bntwhanOt ana-
nnto u* taken >wn, U wiUIhopompMu-,
tM dM »W*t» fa th* Mtanl Md^bii )i«i.
Mr loHc bAra 1 incMd to tha •*Mme,
it will b» prapv to onmiiM tha
citcatBataBMS «f the bautv bafere Iba time
aHagad Ibr Iba hirtb of tbakMor af tba pluBtifr.
' Jutfanr Aiateari o( Aagtcfaa, bad faana Bve
aani, Junei, hii aldeat wn, Allbam hfa Mooail
apa, Riobard, tbiid wn, created lord Alibun,
^•riaa hfa fourth Mn, iiid Arihnr hiiflAhnn.
Ob tba tMrruge of Jamra in 1690, a tatik-
nenl waa aude bj Arthur tha fiiM ear), anil
aafcral nrorinoM and Uraitatuini tfaerda ;
(whiob Hr. l*riine Serjeant DMntioned.]
BicbartI lord Altbam died in ITOI, leai
Aftiiar tata lord Allbam, and
1 ITOl, leaviag
Jamei aon of carl Arthur, leTiedfiDef,aBi)
angited a reeorerjr of bis eal««, and on Ulu
IMh ofUay, 1701, made Ua will, « barcia wat
Unutod a remaiDder to Richard lord AUiain far
life, ranaindartohiafiiataiidaTarr other mo
- ■inala.vilhaf * '
1101, he Biade aiMtiier will, liBuliar a ranain-
dar to Arthur lata lord Allbaia fbv IDa^ nuMia-
dar to hfa firat, and area; otbar aoo, with ae-
Vnal ranaaidwa orar ; bat no manMr of aa-
tiaa waa taken «f Iha daftndant, who ia ike
aaaimd eoa of lord Uohaid, and carlJaiaaa Iha
MB* day affizad a codieil Iherito.
. f Tkm Jnry aOarwarda farr diaritayr and
kanonraUyinadaa preaant theraar to iMia-
Anurtaf lbaJiiMa«tf, Thirdtoi Hw tfc-
j*nidatBar,*'p.lor. ■
And the hmot of the pluoliff |itn
pretend a right to the <slate of Hie Iir
tbaiD under the said wilU sad codioihi
Earl James had isaue James, J ah!
thur, who were lUCceuiTcly nris of i
and who all died wiihout issue n»le i
(he late lord Allhain, who iraa next ■
sinu in poJDl of liluod, lefl a sou, (batt
hate succeeded lo Ibe AlUiam ind
; but I believe ii
t oo«dd not ba eoMMlcd.
na naar lahdow «r tk* Aidj
Thanaariahi
rnadafwyiauiladi
kMdakip,!
rt know-aoiaalhiag of il
il,lhatanT<(rihaa* WOT
af the htolfrd Aldiam^a anr k«ri|f
htiladj; iflbeca WMaoob aaoa.Mi
action wonU ba pubHe, it could net
doubt, and it it iinpottibis it abould b
to all Ihe world, ezoapt two or ihi
meanaat 8er*anta; which Carrie* a
liim very near a demonslralioa, thai
Altliam nercf bad a aon by hta lady.
1 would, tny lorda, obaerre auoaic
itance wbich emit be prodigioaBly >
if then bad bc^a aucn aeon ; it wa
anv ■Dcli
ianmn joar lonlabipi, bow iadon
aetni-wntera are to fiu their W*era ■
graph! on luch occatiooa, and eapeei
« ncritleiBaD ia bleaaed win 99 bnr 1
tnenae an saiate ; i« it not conalantl:
in ibe daily and waekly paoera ba
kiivdaw. Hid Eagknd, Tha lady of 1
waa aafely JalifawJ of aaon, latha
af thai oeUc ftnilt r &0. and thaaali
are pattioiklarly added when any ad
feat, hfa tordabv neter had air '
iaaue. I ny, my lorda, if hud Al
haen aa h^ipy aa 10 harc a aon nAfe
hfa family, who weraiotaraaladiBll
aioo, cannot be anppoaed to bo anagM
il wooU be the enHMan twnonrOTi
rfthawhelaMiibhamhaad,M41
■aqaaal wanM ka»« MekbntMblv I
' aaM^Mi^toy Wa^JiyWHl
and Richard Earl nfAngUiea.
A. D. 1743.
[135S
ilT's coansel, on the fonrineas sheweil by
Llthara to the lessor of the plaintiff when a
We see, my lords, very frequently,
bnd men ore of an illeg;itiinate son, espe-
when they hare no leji^iti mate issue ; and
eve nome instances miglit he shewn, that
have soroetimes preferred their natural
. to tfieir lawful children ; so that I say,
bndness of the kite lord Altham can have
reiii^ht to support tfie pretensions of the
r of the plaintiff; for if a man should have
tard by a servant maid, is it not natural for
Mktake care of his offtfpring ?
le lessor of the plaintiff has endeavoured to
■p ctrcumBtances,yet has fsiled in provin^f
nth ; and the foundation beings sapped, the
ntmcture will consequently fall.
« began with endeavouring' to prove lady
im a woman likely to have children, and
she had two miscarriages aod a real birth
IB Tear. I believe, m)r lords, the gentle -
or the jury, from their own attention to
docorreDces in lite, will obsen'e how im-
lUe, Day even imposubleit is, for a woman
iiearry twice, at times so very distant, and
« space of that very year to oe brought to
if a son. This shews how the lessor of the
itiir lias overshot himself, and has quite
lamed the credibility of his pretensions,
ii agreed, my lords, that the late lord Al-
i ana hia lady were married in 1706 ; that
afterwards parted in 1709, and that about
I ibey were reconciled, and lady Altham
I into Ireland ; the falling out on account
Ir. Palliser, and the separation thereupon
publicly known in the neighbourhood.
CBcumstances of their reconciliation afler
iqiaratiou of four years, would call iu ge-
1 00 the attention of the family, and the
■itjT of the people ; so that if a child was
lo inherit tiiat estate, it must have neces ■
f engaged the attention of the family ; it
id have engaged the attention of the whole
dom ; and if this has uotap|)eared with the
wt deamess, it carries with it the strongest
imption against the plaintiff. My hirds,
t of such importance that appears in the
doubtful, must l>e folse ; liecause, if true,
laM have been evident and notorious beyond
each of a doubt.
y lords, two ladies arc produced as evi-
a for the plaintiff, Mrs. Cole and Miss
Boe, whereon a good deal of stress is laid,
le^tectto the period of time that lady Al-
I went to Donmaine after the reconciliation.
.Cole said. That lady Altham came to Irc-
m 1713, and stayed at her father's house
ome time ; from thence went to lodge at
\ and from Vice's went to Dunmaine.
^ I aay, is made use of to lessen the evi-
c of Mrs. Neath, who said, that lady Al-
I went directly to Dunmaine from cnpt.
eoe*! house, and therein disagreed with
evidence of Mrs. Cole.
; mast be presumed, that if lady Altham
t to Viee'a before she went to the couii-
Miss BtiMoe wo^ld have visited her,
.which she nor Mrs. Cole does not remember-
want ofmemory in that particular lessens their
credit in others. And indeed 1 think it very
improbable, that ladv Altham would have
changed her lodgings iro/u HriscoK's house to
Vice's for such a short space of time, and so
idle a reason as is suggested ; and this circum^^
stance should in a creat measure take away
the force of Mrs. Cole and Miss Briscoe's evi*
dence.
It may be reasonably snpposed, my lords,
that after the pretended recunciliation, some of
my lord Alt ham's relations (as I observed be-
fore) would pay her ladyship some of the or*
(Hoary honours due on such an occasion, some
of the family would have been entertained,
some of them would have been invited, some of
them woulfl have visited her, or would have
taken leave of her when she «>ent to the coun*
try ; and as Rliss Briscoe or Mrs. Cole had
never mentioned any of these circumstances,
their testimony is not much to be relied on ; so
that in this case, what Mrs. Cole said in favoor
of the plaintiff, and the evidence of Aire. Heath
in behalf of the defendant, deserve to be very
\rell considered by the gentlemen of the jury.
M}' lords, 1 believe the gentlemen of ihcjury
on their notes remember, that Mrs. Cole first
swore she was 12 or IS years old at the time of
the pretended miscarriage, and aflerwanls said
she was 15 years old ; a girl of 12 cannot be
supposed to take notice of such miuutc circum-
stances, in relation to the miscarriap^ fur such
things conld not make an impression at that
age; it was indeed prudent of Mrs. Cole, to
have afterwards added two years, to the best of
her remembrance. As Mrs. Heath was con-
stantly \« ith lady Altham, she could not forget
such remarkable circumstances as Mrs. Cole
mentioned.
Mrs. Heath was then in the bloom of life,
about the age of S5 years, when all the humaa
faculties are in full vigour; aod surely it is
natural to believe, that a person can remember
transactions at that age, when the juilgmeiit is
ripe, and the memory more susccpiilile of re-
tention, than at the age of 12 or 13 years, as
Mrs. Cole says she then was ; so tbat'l appeal
to tbc common sense of mankind, whether the
evidence of Mrs. Cole, or Mrs. Heath should
prevail. Mrs. Cole, i think, said, that lady
Altham lo<lged at her father's house six weeks ;
Mra. Heath mentioncil only three weeks ; one
was a child, and the other a woman ;;rown : It
was impossible that .Mrs. Heath could tie mis-
taken, but Mrs. Cole was liable to l>e mistaken.
Therefore in my humble apprehension, and
I hope your lordships and the jury will lie of
the same opinion, tne cvidcucc oV Mrs. Cole
can have no great weight.
The first liiiscarriiigc, my lords, according to
Mrs. Cole's account, was in .April, May, or
June, 1714; Rhc is not rrrlnin in which of
these months it happened ; it Sf'cms a dream
to her, anil iioi a reality ; yet she prtteiuU to
have heard it I'roin I^Iik. lioath ; but heceva^
1 apprcheivu^ si\ft t3LT\\vA\MU.v\v^^t^:^\\.
I9!19] 17 GEORGE IL Trialin
The circamstances which Mn. Cole men-
tioned, of awakiDg her mother at ni^ht by
Mrs. Heath, Bhoakl be considered, and that
Mrs. Cole was not the person who was awaked
or called up. And as to what she says, that
her mother shewed her the abortion the next
morning ; it cannot be supposed, that a girl of
12 years old cuuld know what an abortion was,
or what the word meant, which must be pre-
sumed to have been lately put into her mouth,
by comparing what she has lately heard, with
other incidents, in order to be made a story ;
, therefore I say, it carries with it the strongest
presumption, that this must arise from some
late discourses, adiling thereto a leint remem-
brance, and mentioning some circumstances
that happened 29 years ago, whereby she has
persuaded herself that these things are true,
which are the mere eflccts of her own brain ;
and thus Mrs. Cole is made to say, what she
has offered in evidence.
My lords, Mrs. Cole in this respect is hot a
single witness, and is contradicted by Airs.
Heath and Rolph, to whom she appeals, and
who, she owns, were servants in the house.
And surely, if lady Altham had miscarried, it
must certainly be supposed that Mrs. Heath,
her ladyship's woman, would be privy thereto;
und as she never knew any thing of that mat-
ter, and there is not a single instance offered to
prove it but the memory of a young girl,\vhich
is but little to be relied on, it is plain, that no
such pretended miscarriage ever happened.
Catherine M*Corraick, a woman in low cir-
cumstances, is produced to prove a second
miscarriage; a child proves the first, and a ser-
vant maid who lived at Vice's is now pre-
tended to prove a second miscarriage.
M^Cormick swears, laily Altham came to
town to Vice's about the latter end of May, or
beginning of June 1714, and about six weeks
all^r miscarried, which must be near, or abuui
the month of August. Cole's and M'Cormick's
accounts are inconsistent, and as both, my lords,
are impossible to be believed, it brings a disre-
pute on one or other of the witnesses ; so that
as one cannot tell which to believe, there can
be no dependence on the testimony of either.
Both Mrs. Briscoe and Mrs. Cole s*\vear, they
saw lady Altham in Dublin in Auj^ust 1714,
and that they never heard of a second mibcar-
riagc ; and, as they s«\v, tiicy frequently visited
Jady Altham, she could not miscarry without
their knowlodge. M^Cormick said, one Law-
lor, a mid wife, attended lady Alihaui, and that
she prevctited the sending fur Mrs. Lucas, who
was the midi^ife called for; and that it %vas
Mrs. Heath informed her of the second mis-
carriaire. It seems very odd and absurd, that
Mrs. Lucis should be mentioned to be sent for,
and not one word of l^wior, yet that Luwlor
should be the person brought to attend on that
occasion. -»
The account Mrs. Heath gives of Mrs. Lucas
being intended to be sent for, is very consistent;
but this soems improvH by the in^^enuity of the
conductorsi that the said miscarriage* should
K
Zjeetment letaeen J. AnMiky^m, [IXD
like a madness be bk>wn over, tnd tbit dii
Briscoes should know nothing of iL
Mrs. Alice Bates, my lordSyisiilnB|vii
the second miscarriage at Vice's : jbenp,
that in two months after lady Akbua'ieMai
to Vice's, she was visibly with child, udlk
she clapped her hand on her Uilyibip'i hji
belly. This is ?ery improbable ; or thttU
Altham should say to her, By God, IBj,
Moll's with child ; and though ooewmiU »
deavour to prove her ladyship's prefuiqlf
the manner she pretends lord Altham ipob*
familiarly to her, yet^ in my humUe i||»
hension, it destroys her credit.
U lord Altham gloried in her ladjikip^l|
belly, it is astonisning that it should Mlii
known to all his acquaintance aod rdMiM;
for if he spoke with so mnch freedom ttli
Bates, it must besuppoaed, he wooUbi
published it to all the world. Balei uid,ii
published it in the family of the BriMOo, at
tliey say, they knew nothing of it
Bates said, that ladj Almam wu bigiil
child in November at Vice's. M'CornuckmRb
when she obserred lady Altham with chil^ il
was about Christmas ; and as these efihMi
vary in sueh a manner, it should take mf
the force of their evidence.
I am now, my lords and gentlemen, mm,
to the period ot time wherein the nifiiid
birth of the lessor of the plaintiff is ssid to taa
happened, which was either tbe latter csdd
April, or beginniog of May n l.S, arenivkw
fcra for two miscarriages, aod tbebiithrfl
child in one year.
To prove which, Mr. Dennis Redmoods a
the first iierson produced, who, by lib t«i
confession, was a stable boy ; and thitisihi
best description of bini : but his ^vi'Ieoceii
falsified by himself: he tells you that hecMi;
to lord Althaiu's service about J J yesisssi^j
which was before the reconciliation of his bra- j
ship to his lady, and that he continued in tbei^.
vice for thice years ; if he is right in this, hij
must have left the service before the time at Ai
pretended bitth.
My lordi, it appears that lord Altbam ^
to live at Donmuine in 1711, yet Rtdoosdi^
must be in the service, as he says, is 171^
This point seems to be carried by the pnli^
men a little too f ui- ; ihcy have seitled tlsf
wiuiess in the service five years aQicoeU
to the birth ; and as he lived but aboiu llutf
I \'(^ars in lord Allham's service, he <s>uJii^
havekuoun the transactions of the supp^
birth. How little stress is to lie U;d ud »'
witness is very plain, liideetl hib vet y \^^\
ance created a strong prrjudicc to lit» ditfr!
vantage, and tiiat prejudice is well ju^ii^tdlf
the inconsistency of his evidence.
He said, that he knew Ilolpli wai ioAi:
family in his time; and he remembered i*
other circumstance iu relation to him, hi
that he was about the cellar: And he didiA,
remember any serraiit, but that CkaM
Meagher was butler at the tiiiio of the hrth«
and yat it apiiears that Meagher came '^
\
3
and Rii^tard Earl tfAi^Usea.
A. D. 1749.
[13M
rvioe nntil aAer the time of the pretended
It is pretty remarkable, that all the
defendant's witnesses know nothing; of
■'s being in the family ; but they fix on
es Meaj^her as a prelude to the play.
ry Doyle, my lords, is the next evidence
>portof this pretended birth. She was a
ber maid in the family ; and about 28 or
ars ago she came into the service, and
a very short stay therein; she was
in the family before, and never came
idy Altham's chamber belbre the time of
rth; ^et she is so lucky to come there
nt critical juncture. fc>he could not re-
ler of any porsun boinci^ there, except
m Butler of Rnss, Klean<>r Murphy, the
ife, anil herself. — But Mrs. Heath was
some time aflrrwards, yet Eleanor Mur-
SDuld not remember of any person being
iroom when lady Althum was brought to
except Mrs. Ht-uth. When an uflair, my
» is ushere«l in after this manner, and the
Dce an alMolute stranirer to other circum •
es (which are to be known by the rest of
ritoesses ;) this I apprehend miibt greatly
to have overtum<Hl the creilit of their
Mmy.
n it be siipposted, my lords, that a child
to all those honours should only be known
ibamher maid and an under laundry-maid
nor Murphy)? If they were in the ser-
[which I must own 1 cannot prevail on
If to believe) it must lie after the time
for ihe supposed birth, and by the mean-
rf* their stations it can scarce be presumed
would have been employed about the
My lords, it is demonstrable from their
ibcwmg, tiiat one or the mher of them is
ned ; for Mary Doyle said bhe wsk in the
ie before Eleanor Murphy, and Murphy
bat Doyle was in the service lietore her.
ois ihey both forgot their lessons ; anil
Doyle bfing interroi^ated last day, said
that Eleanor Murphy was in bird Al-
's serf ice before her, and afterwards said
mid not tell if Eleanor Murphy was in
rvioe before her time. These, my lords,
imtnulictioos not to l>e reconciled, and
I induce a disbelief of both their evidence.
lUSt DOW observe to your lordships, how
or Nurphy contradictM herself m |>oint
teas to the eclipse, which happened the j
r April in the year 1715 ; it was a very '
»rable thing, and she saiil that she was at ;
ime at captain Butler*s at Ross ; if she \
true she niuat biive been in Dunmaine at '
me, it being about that {leriod of lime ;
he lescur of the plaintiff baa fixed bis
And another coniradiction arises from
stimooy, that she Mid she was in Dun-
\ three months before the birth (which
I April or May« as pretended ;) yet from |
vn admiflsioo abe was in Ross the ? ^d ol !
and coaie (as she aays) to lord A It ham's
e the da/ following. This is as e^iually
Mteat as Ibe rest ; and, my k>rds, to
ler her tcetimoiij ia anotbcr napect, if
UZFIL
she came to the service the day after the
eclipse, and was in the service three montlii
before the birth, the child must be born in Uie
month of July. From circiimKtancf*8 only
persons sometimes can be proved peijured*;
hut it is plain they were at a loss and coidd not
make all parts of the machine to hang together.
As a proof hereof, let us consider how Mary
Doyle swears that major Fitzgerald nunc to
Dnnmaine the day alter the birth, and lay
there that nigbt : He swore he came to Dun-
maine in the month of September, the day
after the child was bom, but did not continue
there; for that he went to Ross that night.
Mr. Fitzfferald gave very imrticular rcasona
for his being at T)unmaine that month ; that
tl.e harvest was over, and that people at that
time generally pay their half years rent : Ami
he gave an account how be was invited by
lonl Altham ; and that the child was shewn
to him, and he gave the nurse half a guinea.
Surely, my lords, it is incredible that ludy
Altham could have a child in May and another
in September following.
I humbly conceive, my lords, that major
Fitzgerald, from his CMducation and character,
must be presumed to be believed before Doyle
or Murphy ; or if their evidence be regarded,
conse(|uently what Mr. Fitzgerald swore
cannot be tnic. As ibr my part, 1 would not
give up the major to them in poini of credit.
He tells you how he was atlncked, and how
he defeuded*hiiuM'lf and recovered his hoiise.
He appears to be a gentleman of figure and
reputation, and therelore his te.Ktimony ought
to be reliiil on preferably to theirs: but as it
M impossible both stories should he true, it
must bring an imputation on tbe cause ; and,
my lords, it is hnmhly presumed that by the
several contradictions arising from the cviiience
in liehalf of the lessor of the plaintiff, that in
oriler to entitle him to a verdict it is essentially
requisite on him to ascertain a more positive,
distinct, and creditable account of his birth.
My lords, f must take notice to your lord-
ships to what difficulties the plaintifi' was drove,
in point of evi«lence. There has not lieen a
single |ierson of credit near Ross, nor a free-
holder of 10/. a year about that plice, pro-
duced to prove his birth, though JJunmaine
lies within three miles of Ro^«, (a town of
great trade and business,) and though lord
Altham had a considerable estate there; and
this is attended with another circumst:ince,
that the plaintiff's birth was not rpgi^itercd
in the paribh where he ifs pretended to Le
bom. And though it is said that there were
public rej/>icings in Duninairie for his birth,
yet we find no gentleman in that part of tlie
country knew any thing of it, nor is there any
person above the'degree of a servant product
to give any account of his birth. vVhy hat
not tbe plaintiff produced better evidence?
Every thing is to be proved by tbe beU
testimony it will admit of. The fact might
well admit better tiidcace, but tbe caoae «iU
not aflbrd it.
4Si
1S83J 17 GEORGE 11. Trial hi Ejedmeni lehseen J. Amedejjf, esq. [IS64
I shall next make ^ome obserratioM, my
lordfi, on the appointing Joan I^andy to be
nume for this pretended child. It ia said the
child remained with her fourteen or fifteen
months ; her name was given in to the de-
fendant's counsel to be examined as one of the
witnesses for the plaintiff: Why is not she
produced ? The gfentlemen of the other side
E remised from day to day that we should see
er examined ; and we expected that accord-
ingly she was to have wound up the liottom.
She could not shelter herself by saying she
was only three months in the service : Either
the consciousness that she coald not swear
that lady Altham had a child, or that her infir-
mity would not admit her to have art enough
to disguise, prevented the plaintiff from exa-
mining her.
The ulaintifTs counsel, my lords, being
Eressed ny the defendant's counsel to produce
er, have made an ingenious apology forlier ;
that she is an infirm old woman ; but this can-
not he the reason. However weak she is, she
must still speak truth ; she was longer conver-
sant in the affairs of the family, than either
Doyle or Murphy, consequently it induces a
■tn»ng presumption of the Iwdness of the
cause. There must be some contrivance in
giving her name amon^ the list of evidences,
and aftenvards in omitting to examine her.-— f
■a^^ therefore, my lords, it is plain, that the
plaintiff anprehended truth would force its way,
ifLiindy had l>een examined ; she must know
wlH>tlier she had a bastard by lord Altham, or
whether she nursed any child for him ; and as
1 am iiifornicd that she is in town, and per*
liaps in ouurt, it must have the strongest
im|)rrssion on the miiid of every man, that
the whole affair on the part of the plaintiff, is a
mere fiction, since he avoids the examination
of a person who must be best apprized of the
whole transaetion.
And here, my lords, T should take notice to
your lordships, and the gentlemen of the jury,
that Mary Doyle swore that Joan Landy was
married to one IVrCormick, l>efore the birth of
the lessor of the plaintiff; and that they lived
in the lands of Dunmaine; though nil the
otluT ivitn(*Mses say, they were not married till
nfier the separation of my lord and lady at
Duninaino, whirli was a long time af^er the
lessor of t1)c plaintiff is sup|M)8e<l to he born ;
and this likewise shews the improbability of
the plaintiff's story.
.loan Liindy must l»e with child, it is true, to
qnaliCy her to he a nurse ; and it appears she
\\a< unmarried at the time of nursing the
child, and her ehild must be a year older than
lady \ltiianrs prttended child.
n lady Aliham had a child, my lonls, it is
rxlremely ^u^|)rising that so little care should
he taken of it, as to give it into the care of
Joan Landy to be nursed, who was scarce
t'hah' eiinn;;h (if 1 am rightly instructed) to
cunline herself to one person ; nobody can
tell what disorders she might contract: for
Uicse reasons, irom the apprehension of noch
3
daogen, it ii veiy improbable lady Ahbin
woiild have entrusted her child to such t
nurse.
There are other reasons, my lords, which
must weigh greatly with your lordships, aod
the gentlemen of the jury. It is proved that
lady Altham suspected Joan Landy to be with
child by my lord, and therefore turned her ost
of the house on that account ; is it poesibte to
think, that this person to which laoy Altbaa
bad so great a disgust and aversiooy slioold be
the very person she should think proper to fix
on for the nursing her son and heir ? And cu
it enter into the mind of man, that lord Al-
tham, who never before had a chiM by hii
lady, and could not well. expect to have muj
more, should consent that this only child uf
the family, bom to such high hopoor and io*
mense estate, should be sent to such a eres*
ture as Landy was, and be nursed in a nun
cottier's cabbin P It is unusual w ith gentlem
of the couutrv to send their only«cnild to be
nursed abroad, and especially when there ue
conveniences for that purpose at home; uti
Landy's cottage, it appeared to be a ctUii if
the meanest kind.
It is natural to suppose, my lords, that if
lord Altham had a legitimate son, he wooM
not be admitted to be nursed abroad, prope
persons would have been appointed to allm
the child at home ; and the tenderness of hdy
Altham for her child, would ao strongly 0Te^
flow in her, that she could not bear having hn
out of her sight, and lord Altham*s interest, h
well as his fondness, would influence bim ti
have the child always under his eye.
But to gloss over 'this fiction, and give it the
appearance of a reality, this cabbin is tu k
dressed up ; and Murphy adds a third roemio
the cottage, and this room is decke<l and or&i-
mented for the nursing of the child ; but tiie
other witnesses contra<]ict Murphy, and affirtfi
that there was nut a third room added.
Murphy said, that about three weeks a.'irr
the birth of the child, it was sent to be naned
in this new-made room, a habitatitm extremH}'
improper for a tender infant, liorn to soch lio-
nonr and such an estate, and whose prtfspn:r
tion must at that time have been hiii pvfofi
greatest care. The fiction is too improbabletf
meet any credit.
My lords, one Dartholomew Furlong oin*
tions, that thi-ee weeks before the cliildvu
born, he applied in order to get the niirsicg^
the child for his wife ; by the nlaintifT*! en-
dence, in about si.x weeks after this spplicabaii
the cliild was sent to T«andy*s; ann thmfb
this man was well recommended, aa*) bailiki
character of an honest man^ yet his nitt «•
refused, and a kitchen- wench under ao 10 r^
pute (as appeared i:i evidence) with the mcsct^
of the serrants, was preferred to F^^
wife. But this is varnished over by a wnl*
indisposition, to occasion lier milk sot l»^
wliolesome ; and doctor Brown, who wai •■
to have examined her milk, happens oo««l
to be living.
Id65]
and Hiehard Earl tif Arigltsea.
A. D. 1T«.
Hinlvit
• child
nicocei, IhU niiijhi lie iiwi){iieil as a
•uuliaK lh« cliilil ubroiii]. But limt
bl tli« Innl jlltliain'i cite, lie had a liirge
Coontrj'- house, and a number nt' tervauti ; it
b »rjr imprubaUe, that he should send liisonlj-
■M uJ heir out uf his own houM.
^ The iiltunliff, my lord*, to make hlsprplen-
VMU the mnre plaiuible, hu produced Ptiili|i
3t**» 'id xome other wiwestes ithu taid thert
Vn«g'reiilreji>idng;a anil ttoniires made fur the
linb ol' the child 1 and that lhi:re was a great
•britteniim;, •od liquor giieti iii ahundaiice to
Vta MTTtnta on thai uccaaioa. IT there were
Mr Mich rejoiciags, the}' would have been
MUltC, aud other sertaolji diubI haie seen
lltno ; btit thik, it (eeins, was ioleudvd lo be
apBcealad from all the other scif anis, anil the
PU of mankind, except the witneuea wlio ooit
pulcurour to prureit.
Tbe Ero*e, near loid Althani's house, was an
attiaCK lor a UinBre lor jmblic rejoicio^< ; if
;ha Are iris made nilhaut the grore, the ncigh-
iurB mutt have seen it ; but tbe whole lualler
M U«nded nitii buch ioconBlMeocee, that il
nmt appear an odJjumbled story.
My lords, 1 ntnst now heg l^ve Id make
ttnp nbaeriatiDns, to shew your loidchips and
Im gentleiaen of the jury, that tiie proof in
nint of credibility ia oo ilie tide of the del'en-
Iwi, the earl of AliKlesea, and that il lord Al-
IpaBl bad a child at the time pretended by the
nldence to he born, Joan Idody and out lady
Blbaifn must he the mother.
^ lliis exlranrdiuary case, my lords, rolls nn
4tt fcirth of the lessor of the plniDtilf, I shall
aooaider some of of the deleiidaut'd proofs,
|a4«baUflritukenoliceofMr«. Heath, who
■■Milady Altham's woman, and lived with her
iH bee death; she shears positirely, that her
'" ' " -- ' ' a child while she was in
>r heard till iatuly Ibal lidy
n erer had a child. Hbe came lo Irdund
■I 1713, and went from Dublin with her lady-
HnP lo Duumaiae the ChristmaB-ere aller her
IWmhut over, and lived with her till her death,
IpH Dever wns aliseul one week from her : so
llMtit waj impowiblt: fur lady Altham lo hare
B child without her knuwii^dge ; yet alie says,
Mw ntncr olMrred any si^ns of her Indynhip's
kagmiicy i and Dobndy can he supponed lo
Maw the circiuiiMaDceii of tbe family belter
■ttisfa*. ''
ftoiph swore that lady Aliham never bud a
■lild, nor efer miscarried. Dwyer, my lord's
KBOian, swears the same, and lliry must
known il, if toy auch liad heeu, for they
*«r« (he priiici|wl perMos vita were serraou
■ Ute taiiuly : so thit, 1 say, Mrs. Ilealh's
^■imoDy is slTM^Iy confirmed hy their evi-
ttlf kiedi, I would subniil to ynur lordshipa,
*4 la ill* mmiory of the geuilcmvn of the
Kl thv ijRijtlcmeii of lluil part of the
iwccr tb«y brlicrc that huly Althnm
iadyalii|)iuiifr
btraervice, Bn<
[1360
never bad a child, that Ihry n
Isleiy that her ladyship hud acliiiu ; auu luui
it nbc had had a chihl, ihe^ uiiist hoe heard
of it; and the reason ul the thing pbiTdy
speaks, that the faet, if true, must buve Inwa
pulilicly known in the nei|{h boil rliood.
Hr. Palliser tlie younger, who lived in Iha
fsmity fur a long lime, and is menlioned as (he
tiithappy caute of tliv separation, swears he
neier heard that ludy Althsm had a child.
Mr. William Nnjiper swears he lived at Host
for 50 years, and was married to a near rels>
lion of lord Allliam's, and intrusted iu the
afTairs of ibc family, and was employed ly the
Ule lord Ao^lesea lo make leases of llie Itnss
«stale, (the lute lord Anglesea coming iotu pos-
sessioQ thereof ailcr the death of the Isle lord
Alllmm 0 so that he must well know, if lard
Altham had d sou. the lonl Anglesea could not
have a right. Vet no person made any ub-
Jccliun to the late lord Anglesea's title, uiir did
the tenants make a difKcuTty lo attorn to himj
oud if lord Altbam left a son, it is impowihie
U would not have been known in the tnwu of
Boss.
My lords, if lady Alihain had a son, it would
oalurally he a great comfort lo her in lier
afflictioD after the sepamlino ; the proi|iect of
having a son wlia was to succeed lo so consi-
derable an estate, must allef iaie her anxiety ;
in every caaipanv she would have mide frc>
quent mention uf him ; yet she never spoke
one syllable of bim 10 any person whatever.
As to James Walsh, il is impossible, luy
lords, histesiimony coulith«true: he siaies ii,
that the day of the sepnnition ladv Allham
woidd choose to come to town in the middle
of the day, lo be the object of pnhlio view,
Ihough iiiikocenl, and come te captain Butler's
before dinner ; herein Walsh differs from ihe
plaintiif's other witnea^es, as lu the lime of
Walsh swears further, that her ladyshi|>
came to Uoss in a chslr drawn by one horse,
and that he handed Iict out of it ; some of the
other witnesses say, she came in a fnur-wheel
chair, others a four- wheel carriage, and in this
reapect Walsh also varies I'roiu the rest of the
eviileuoes.
Kirs. IleMh says, that laily Altham pa«-
tiv«ly directed tite coacbnaa to go easy, Uut
it snighl he lale whenshecomc to Iloss; uud
ibis tallies with what the other w Tin nics swear
in Ihal respect, that it was diiskish and Inlc in
the evening wlten lady Altham came lo H«sa
(llie day she leit Dunmaine) conseiiuenily she
inusl come there iRer dinner-time: ■•> ihat if
tliere be any reliance on llie lestiinoDy of tli«
plBinlilT'soiberwiinesaea, Walsh in Ibisparti-
cular must be looked upon as a made witneaa,
and not to be creiliied. Ji is very observable,
nty lords, how convuicing llw prvds arc on the
side of the defendani ; whereas ifaoie for tin
plaiatiffure iocampalible, and sap the tbunda-
liuM wlwreon they build.
For tb« drvMiue up tbe story at DunnaiiMi
my lords, Joau Loifin ia produced. J«>%
wn
ITGEOSGEIL TfU'im£lteknMldmtmJ.Jkmedes,af..^
ImAj WW jlidgcd bj Hm pidotiir. te be u
fmi^mf^ witMM; tkerafera lln.LtlBM At
• 4h7niirae(beeAiiMtb«iitQppoicdti»bmTemoi«
^ «iiniuiig)w bioufflittotopplytlie wantof tbe
' 0fideooe«fLtiMl^ the wet bone.
I^iffiui al fim Httd. she etme into Ibe eernoe
• in ine, but efterwerdf reeollecled heneirtha
it WM in herfcit 1715. Though tbie wh ai
- enelliiiisteke, HweefbimdiDtteriallooomcC
it, Yet Hill her teidmoiiy ean*t be reooodM
: botVr her eomiiig iMo ibeeeivice io ITlfif
wbieb iMkei tnKb break ost to shew the im*
• prebaMlitjefhereTideiiee.
If Latteeam^faito tb« eerriee ui 1716, It
• -would overreaeh tliethnea;i?en io eriilMoe
' bjf Dojie and Mor^y; therefore ebe nioift,
eay, the ehild wae- three inoDtha old at Imt
«omio|f iDto die family hi 1715. It ie dear
' liiatthiepieeeiorher erideiioai waa mtrodoeed
•in thb period, to gire a lanolion to the other
wfl8eeeei,!Doyleand Mtnrpby.
I would, my kirdf, beg teate to aelc liow
- «oukl the phintiff'e wftncaeea know how^ a
- noMeman'e ehild wai to be dineed ? itiepbin
tbif point wae eettled before they eamo on the
table to be enimhitfd ; but the mannerin whioh
• ;tfaey ddif ered in their etridenoea, and their
tery looke, betrayed n eonfeeioaa gnih.
uflbn eaye, abo Waa a ohabiwmaid hi the
. aerviooatlfoeB; and tbaiihoobiUI wiaaboat
> nryenrand a kairhilhe 'Whole under her eare,
••iNMre the aeparatlofrr and that 'Cbaffoi
Meagher the batler brodtfht the ehild ttt Rhi-
vnay^ Rolpbaaysy boMttotleafetheeerfioe
. liiraboot Chrietmaa, 1715. It ie eaiily 4if.
• earned bow eoneiatently I^tlph ga^e his en*
• denoe; bit quarrel with the jfardener, hit
• ffoing into the goardt, and the time of hit en-
campment most make such impretsiont on his
•mind, that he must hare remembered it; but
'■' I>oyle and Murpby foltify each other, and
liattau contradicts them, as I shall shew im-
• mediately. So that I humbly conceiTe their
eridenQB ought to be rnected.
If .the chfld was in Laflan's care for a year
• and a half, and that she came into the serrice
• in August 1715, then all her care of the child
must cease at least before July or Aueust 1717.
Now, my lords, it n not pretended that lord
•Altham went to Kinnay till the year 1718;
. and if what Laifan says, be true, that the child
was Uken from her and s«it to lord Aliham'e
to Kinnay, then there is a chasm of a year,
from 1717 to 1718, not accounted for, which
■ cannot be filled up, but by supposing that Laf-
fan came into the service in 1716. So that, f
aay, the circumstance of her coming into the
aervice in the ;jrear 1715 cannot reconcile her
-evidence; but in 1710 might answer to the
.child's going to Kinnay in 1718; however,
.that would not ^correspond with her dry-nnrring
of the child before the separation: I appeal
therefore to your lordshipe, what dependnee
-there can be on Laflan'e testimony.
Lord Altham's uking the child to hie hwd-
.ahip^a bonaa, and hia irindnam to bin at Kinnay
Aar
to ahow tllo 'IcgMnHiBy af
tiwplilatifft iatmri itliaoaM
■MNi who have wTlawM Ihhl is ml
ehifaim gmtari linMiiiin, ai^inaiM
graad mannar. bM God forbid that lammHr
ftat kuid ahooU ablnido •■ hidr an MUk
It ia eaaly iBBiaamii by tha phiiffl.
deneea, that the oUM ' ~
hooao after tha aanmtM
tabled byiard AMmub, a^miibtlaMiai
byaoBiaaahiaiawfyaaB|biit>^lbrtMjh
not jproved, aU iho mat or ina otiitaBimall;
tothe^rottod. -
1 wB neienonni me prevnOf nni Ma-SHni
fta^naatly withad^that hia WigUimiiMih
Icgitimata, in aider to eat oat hh biM;
therrfova aapaaiur tba diBJaaini tf Mi
Althalii*a«iadButtod.tki
cient toauoanaet to baiievo the hmr
phhUHrhialawfdl aan. And hisniyd
thatif knd Akham tmiadnoad bfaaMI
nerof exprtaimi, Thie ia my lMnU>aiy
pictended by tha ptabtilPa '
common n way oftptabiag, UHkHni
poipiefoB of hto limHlMaf,y. Od.1
tiaoiNiy avaib Mthiatf I hefairiiiM
\l
that lady AUham had a cUU; tbik ki
lawunatlogototkojmw. '
. If tba dectoi^iana af iwd Jbto
bavaainf waigblf tllo pliMHliPi
iBoatradicted% witMomwrfaai
batfofthedafoiidaBt Dr.Mtilha^i
hwd Althamdaetarad, thaaat Iwhadi
did not cara what becaoMaf tbetidi
death; and this ia ao like hia chanMhr.
doubt can be madeof the tmth of it iw<
disposition he shewed to make wkjt
money he could of the estate,
he bad no legitimate issue. , ^,
Colonel Herman is very C3rpre«iiibj'[
mooy with respect to my lord's btriof *|fj
fnl issue ; and he was in tneh odegnia^
timaoy, that hia evidence most be w^ff^
Me.
I shall now, my lords, proceed ti t^
denoe in Proper^lane. John Bym tiM f^
and Thomas Bym the eon, and Pibick
ket, produced aa witnesaea for tbepli
my, tnat Mr. Jamea AnncsJey was nfrt^fL .
hiwfulsonofmykMdAltham. TbeaitW
says, that the lessor.of the ptentif •**?]
him in a mean condition, ki Septeafca
and that he then took care of Iw bi
brewery, his fother being then in the
and that he concealed the leaser of tk]
for six wedcs in his fother's home.
It appears by the testimony of WaMft*i'
he went to seliool with him in Warta**
street to one Donn; and Dunn «vBi^'
September 1794 to the Easter m^^l
was at his school. So that bis teHifli*"
Thomas Byrn's don't square togetM'*
said, he .called him the youag kr'.'
during that time; bat if Byra beUlk!
wat then in the loweat condilioBi a (^
daititoteofallmlief. '
Lent Ailkam^ bakavieiw aAv IM
I
h
\
1
and Richard Earl of Anglfst
•r-hii*, M Ibe strungett proof, llial llic
of tbephiDtiffvTBsnat Ins lawrul
It Id be L-fxiccired, my lords, lliat a father
\ throw oJf Ills lawliil enn «1 tbr ag« ul'
«i|;ill or nine yearw, anil expose liiill ■< ~
Hud, wlicn tile cbilil i* lacufialiW uf coi
Ig an otTrnce Ihit ctm\A deserte sucll |i
nenif The naiural lies of lilonil must be
»«d lit 0|>ernte; and it cannot be mn-
ilhnliiny inannfthele««iburaaniiy rojld
lilty Dr«n act olthal kind. Bui tbis eon-
)f alather may )>« Tceooclltd in ihccaie
bulani -, because be at lirsl may t«lie>e
le was bis aon, anil iirt^rwanlB mny be
nl lo believe the contrary ; and the boy's
BO inoorrigiblif, aa np[«nred in proof,
faare aomv influence lo raiie doubta in
Jea, inrely. my lords, it ■< intposiible to
IM, he would 9v^ him SD abandi-ned.
All been ijreally lo tbe adfantage of the
rd Allbam lo have a son.
I lale loril Allham had a remainder in lail
r»*t part uf the Angleaen estnle, expect-
the fslule for life of earl Anliur, who
lO i«aue ; and if be had ■ ion, be could
iMrreil the remtiuder by Wyinif a fine;
woatil bare been bis interest tu bare done
kitae hia lordthip could then tniike a better
I a pufchaaer ; but if he tiled wilbuut a
►e r«nainderaoter would lake place, and
[uenlty the estate nould be tbe worK tu
liaier. IJut now let us see hnw llie case
•land If lord Allham bad a luwful sun.
rd ihen could hate raised money by aale
enioni, in r^ard that ihe earl was |iul
for lile ; and It la trelJ known, tliat big
I such a son uiUTit have procured him
t and reaped as well as pmfii, it being
[I M shew greater regdrd In Ihose who ire
it their estaie* and litlca to ibeir
I It must create an additional respect to
•Isbip, to consider, if be bad nucb a son,
lould happen to survive Ihe lale Inril An-
I that be might witb bis concurrencedia-
i'hia own and Ibe AoglexA estate. Lei
iot of law be what it h 111, it appears by
I Wall (baring takeii opinion of' counsel
ti]tbal lord AUham 'ia\Tlb, tbuiightit
be of inlinile service to bim to hate a
■11 he mighl thereby enlargs his fortune-,
hile he was passe«sed with Ibis belief, aud
b a DTceuttuus condition at that time. If
1 ativ apprehension that there was a no-
i»t be bad a son and heir, would il not
icen a good opparlunity for bim to lalte
ilM into his care and impose him on Ibe
as his legitimate son, when be knew the
'Mneatit of biajiower In Ihalcase? Or if
I altgltimite son, which be might tbinlc
■ tu conceal fur some time betore, surely
[ta he judged it ao iiiuoh hia inlerest lu
a«Ott)he would hare declared it to the
kkgdnra ; therefore his not doing to is
tdrstmuUnce to prove ihst he had
■a. A. D. !V*3. [137»J
My lords, there is another neighly rircnn* \
■taoi-e, which must strike every penman tbMfl
bean this all'uir. Ladv Altham was in DubltftF
fri)nillieyeiirl719Ui 1734, wbenlbeboyw .
wanderin;^ uhoul ihe streels in the grealetit dia>f
tress, and nu appllcalioit was made lo her ladt>
ship for tbe buy ; and curcly If he imngineil ft.
wea bersnn, lie would have ap|dinl lohertL
such indigence. Moreover, niy hmls, lady AM
tliam liveil at Ross three or four - - - ■ ' - •
0ublin for four or Hie years, i
menlioned Ihe name of a son CKcent lo Mr*. %
Margaret Hodgent, who watin the Temple i
luremy lime, and is belter known by Horae of 1
gentlemen of tbe other side iIibd she la lo me} I
hut lipr evidence must be an iJle story. "
PiVi; Hodijfera tells yon, she netf r sal
bidynhlp but once, and yet abecnuiesin
riHiin to alderman King'i, makes a low c)ir> 1
le«y,* and iinmeilinlely alter my lady Allban 1
(who had never exchan^d a wurd with herbs* 1
lore) «nters iula cnutiTnalion with her, telli 1
Mrs. Hudgers, tliat her ladyship boil achlM. 1
and ibsl you bate better luck than I hav<; I
wblth apfieura lo be very improbable. '
My lords, lady Allham fas appears by a1d«w 1
man King's leiitimony) ludged and dieted wilk J
bim luralioiii 13 months, and frequently dis>
coursed with him ulwut her fiimlly affair
and I
serve lo your lordihips, that alderman Kiiw
gives a very good acooutil of Ibe behaviour « ]
Mrs. Heath, and ihis la a strong reason Ibal
she is to be believed before Mrs. Uudgers.
Mra. EtiEDbetb M'Mullen, a wltoeas exk
mined for llie defendant, says, she was ao-
quainled witb lady Allbam for a bum sere nor
piKht years, and frequently conversed with her
ladyship whilst she lodged at bor house, yet
■be never mentioned any thing of a son to her,
iinr did she eter hear she bad a son. Aua I
when my lady vrus apprised uf the death of |
lord Allbam, liy Mrs. M'Mullen 's lellerlo Mr«( 1
Heath, which was dated ISth of December I
1727, and tbe conteiiU of it cororoiinicalad j
In her ladyship by Mrs. Heath ; yel ladf ]
Allham never lobb notice of-« son, and ouv> ,
with&landing she survived lord Allbam Rlr
two years, vei she never so much as stwke of \
a Mu ; and though she was disordered in her
limbs, her under 'landing and memory wen
not in Ibe least Impaired; for Mrs. Heath
said, she retained ber aenM* to tbe last day of
her death.
Lady Allham waa siippnrtei) by the late duke
of Buckingham, during hia lite, and by bti .
duchess after hu death ; and her ladyship wad
knew she had Irlfuds, who would be glad tm
support the bin bright of ber cbitd, ifKbe bad
any : but as no such thing baa ever appeared, i
* Hereupon the Prime Serjuanl
Mrs. Hodgers Id a curtesy, and Liin) CliieT. .
Baron smilnigly said, You havaadded acurtesj', -
MLFflueE^erjeanl, gniGd'ullYtubiGteruli "
\
I
«itife evidence, oonfcquently ought to bate' no
inflaence in determining this cause, and I can-
not help saying it was cooked up to give credit
to the story ; lor it is most likely that the boy
iodeuturedf voluntarily, and that the defendant
did not transport him againnt his own will.
Douiinick rArrell, a witness for the plaintiff,
lets out as seeming to be a genileman of credit
and %ure, by ftis fisita to Dunmaine ; there
be says he saw the lady dandle and treat the
child ; but his teakimony cannot be true, be-
cause be says he saw the child in Dunmaine in
17 17 or 1718, yet the separation hapfiened in
February 1716. Farrell, my lords, is ushered
in previously to the transportation, to ahew
that it was he recommended the boy to Purcell,
and how charitably Purc^} behaved to the
hoy. 1 must own, it ia not common to see in-
stances of humanity from a butcher, to support
Ibf chikl of another person out of mere chanty :
however, 1 shall only observe some contradic-
tions in theteatimony of Parrell from the plain-
tiff's other witoeascs : he widely diiSers from
Ihem, as to the period of time of bis seeing the
child in Dunmaine in 1718 ; and he likewise
varies from Puroell in other particulars. Far-
rell iiays, h^ called the boy when he saw him
riding in Smitbfield ; and Pureell says, the boy
was talking to Farrell when he first saw him.
Puroell fiuys, the boy was present, and Parrel I
flays tiie contrary. Farreh awearsit will be
eleven years uext Christmas since he went first
to Cork to live, and that the boy was at Pur-
cell's, when he went there, and an year and a
half in PttraeH's care, and therein he stands
falaified by the rest of the witnesses.
Jt is vei^ improhable, my lords, that an at-
leroptahould be made to kidnap the boy at
when it na^
out nmoini
Now, uk\
for the tran
Bym the <
iototlieboal
to George's
peared pnbl
vant swears
he sent him
stayed for s
hour and a
fendant still
(the place Wi
miles distac
sonably sup
reckons goii
was said, t
boat, and afi
first, and D<
not to be bel
be believed
differ about
tioo on their
I'he uext
books of tl
Tholselbool
concluded,
himself as ;
James Hem
indentured :
is not enten
withstanding
ley and Jinn
cause Henn/
who went
same ship \
books. Thi
mnd Richard Earl ofAnglesen,
A. D. 1745.
[137*
enC ftboand, were brought before the lord
; that he never knew of any person who
foard but such as were indentured, and
cnew of any taken by force ; it may be
ell presumed, that Hennesley and An-
il one and the same {lerson ; and the
iitj weighs, that the lessor of the plain-
I tired of wandering and strolling about
sets here, and therefore transported him-
f cod the seas.
, my lords, f sholl obserre to year lord-
lie eridence of Mr. GifTsrd, with respect
prosecution ; but as it has been already
hrerted on, when he was on the table, f
ttuble your lordships but with very little
pgsrd to him. This gentleman comes
iril? to betray his client, who could not
pelted by a process from a foreign king-
ind therefore no stress should be laid on
dmony. If there had been any method
> oblige him to discover the secrets of
»t, there might be some inducement to
jn credit ; but when he appears here in
r light, it must be supposed, there hangs
lias on his mind. He owns, lord An-
provoked him, because there were dis-
*etweeu them on account of bills of cost ;
Giffanl has shewn a resentment on that
»D, he cannot be said to be an uniuflu-
(ritness ; and though he might be em-
by the defendant in the prosecution,
M improper means were made use of,
fendant cannot be said strictly to be
of a crime : and indeed it is very im-
le, that the defendant could be so weak
nake such declarations to Giffard, and
iving put himself in his pouer, to fall
ih him for so small a sum as '200/.
lords, I am sorry to mention what con-
ies there have been made use of to throw
t the defendant, and no art has been
J to take away the crcxlit of his evi-
A bill has been file<l against Mrs.
, to discover lady A Itham's effects, which
irely calculated, in order to prevent her
^ing examined in behalf ot the defen-
IVny was a lieutenancy offered to
? The tendency of it is easily seen
;h, to induce circumstances of suspicion.
>irds, the earl of Anglesea was then in
distress, being involved in so many suits,
ich he was perhaps actuated with resent-
I and a man thus enraged, may possibly
logs contrary to his sentiments, which on
' reflation, may fill him with concern ;
I then inflamed with passion, and might
^y think a proposal of a sum of money
extricate him from his difficulties. How-
3iiard is but a single witness, and not
wn influence ; but truth is not to be
Died by suspicions.
lords, I fear I have taken up too much
f time, and of the gentlemen of the jury ;
V aow oonclude, by only observing to
lordshlpa, that no man can be safe in
^peity. if a child thus trumped up is
' up IM beds of tbis rightful b'eir to
the family ; because a precedent of this kind
might be attended with the most dangerous
consequence to every gentleman's family ;
for if It should at any time happen that a maa
should have a child bom out of^ wed lock, who,
by some means or other, might fall into the
hands of artful men, he might set up some pre*
tensions in prejudice to tbe lawful heir, by the
same plan, and by such evidence as is cooked'
up fbr the lessor of the plaintiff. Therefore to
prevent any such impositions on the public^
anil to deter all adventurers from engaging in
such practices, so destructive to society in ge*
neral, and for the sake of justice, I hope the
gentlemen of the jury will give a verdict for
tbe defendant.
Note, The Torching argument lasted front
a quaiier before nme o'clock till a quarter past
one.
I
Mr. Solicitor General (Warden Flood, esq.)-
of counsel for tbe defendant.
My lords, the evidence on both sides has
been so fully spoke to, aud so clearly stated by
Mr. IVime Serjeant, that I shall only trouble
your lordships and the gentlemen of the jury
(who have the greatest estate in their disposal
that was ever tried by any jury) with some ob-
servations on tbe evidence produced in behalf
of the plaintif}\
The lord and lady AUham were married very
early, and cohabited a long time in England'
without having a child ; they separated for
some time, and in 1713 were reunited.
Before the re«union no proof, my lords, baa
been attempted to be made by the plaintiff Uiat
lady Altham was a fruitful woman ; but after
the reconciliation, in order to support a pre-
tended birth, it must be thought necessary first
to prove her ladyship's fruitfulness by two
rupposed miscarriages.
The evidence of Mrs. Cole is endeavoured
to be applied for proof of the first miscarriage,
which (she says) was occasioned by the china
saucers being thrown by lord Altham ; but the
improbability of her evidence is very clear, in re-
gard the saucers were levelled at the butler and
not at my lady, how could her ladyship be dis-
pleased at what was intended to her as a com-
pliment? Moreover, as it does not appear at
that time there was any cause of quarrel be-
tween myi lord and lady, so there could not be
a presumption of a fright, nor consequently of
a mtscamage.
Mrs. Catharine M*Cormick is to be depend-
ed on to provea second miscarriage, and she only
must be supposed privy thereto ; how consist-
ent her testimony is, I submit to your lord-
ships and the gentlemen of the Jury.
The account Mrs. Bates gives of the first
miscarriage is'equally absurd, the bare mention
of it is suflicient to reject it. Is it probable^
my lords, that lady Altham, who is proved by
plaintifl^s witnesses to be a proud exalted^
woman, would admit such an ordinary mean'
servant to be so familiar to put her haadi on her.
ladyship's belly ?
1S75J 17 GEORGE II. Trial in Ejectment beixveen J. AnneJej/, esq. [1376
My lords, Mrs. Doyle (Hic cliamber-maid,)
and Nurpliy the(lauiidry-maid) must next come
on to prove the firt-tcnded biith atDunmuitie;
yet not one person of tbc family must either
know or hear any thint; in relation thereto.
The rule of reason, my lords, is to prove jp-eat
things by great persons, and low things by low
persons ; and every proof ought to be adapted
to the nature of the thing. It has apjieared,
my lords, that in the year 17 15 the earl of An-
glesea was so afflicted with the gout, that lord
Altbam apprehended his life was despaired of,
and it was judged by most people he could not
live long. Lord Anglesea then resided in that
part of the country, and had no prospect of
naving any issue, yet he never heard of the
lady AUham's having a child to be heir to the
title and estate of his family.
Doyle and Murphy swear they live<l in the
house of Dunmaine at the time of the birth,
and here they stand contradicteil by liolpb,
^hom they said they never knew to live there,
though he was the butler at the time they
would pretend the child was born. Every one
of the witnesses for the plainiifl*, except Poyle,
say, that Joan Landy was not married till after
the birth : but Doyle says she was married be-
fore the birth: consequently she should be
looked upon as a made witness. Murphy con-
tradicts herself as to the time of the eclipse;
«he swears^he was then at Madam Butler's at
Ross, consequently she could not be at Dun-
maine at the time prefixed for the birth ? so
that unless we suppose her in two places at one
and the same time, her evidence must be re-
pugnant to truth.
Breen (a labourer's son,) and Brooks (a petty
surgeon) are the next witnesses for this pre-
tended birth. Brooks says, he bled ludy Al-
tham just bclbre her deliver}'. I believe, my
lords, it is very unusual for women to be .let
bloud on such occasions. Brooks very mo-
dcKstly tells you he was bur a ))iece of a sur-
geon, and I fenr he was but a very indifferent
one : Neither was he ever cmplo\ Cil before by
the family ; I am inclined to tliink he never
was, otherwise be would not venture to bleed
in the dark (uithout a candle.) Mr. Sutton, a
very eminent sturgeon, who was well acquuiut-
ed with thefunuly,andrncdin thetoun ol Uoss,
was not sent for ; but the other quack was pre-
ferred to him. IIow reconcilable this can be,
I appeal to your lordships.
Turner is anotlier witness produced by the
plaintiflf to support his pretensions. The difli-
culty of belicvmg his testimony may be easily
observed ; that he who lived so long in the
house can't tell the name of any one of the
servants. And moreover, lady Altham must
be in Dublin in August 1715, at the time he
says she had a chihl.
As to alderman Thames, I shall ascribe the
inconsistency of histestimoo}', to his great age,
and want of memory ; lord Altham tells him,
Ihat his wife, Moll Slieflield, was delivered of
a son ; yet the day after he dined at Dunmaine
with licr ladyship* and he never enquired about
any son, nor was the name of a son msdt
mention of tliere.
Mrs. Annesley, who is produced ns a wit-
ness for the plaiutiflT, only mentions the toaatin;;
of a health, but speaks not a word of a Inrth;
nor did she ever bear of a miscarriage.
Christopher Brown is prodaced by the plaio-
tifl* as to proof of the pretended christeabir;
he had his lesson to be exact as to the gcu-
fathers ; but can't tell any other person in com-
pany, though he waited at table that daT. He
describes the great hall where he dineJ, yet it
appears by Soott there is no such hall in tU
house. But, my lords, it is plain that the oolv
way of detecting these evidences is in tile
them out of the road they were instructed io,
and by other circumstances the inoonsistency
of their testimony is shewn. When BroKu
was asked to name any of the servants tkit
dined with him, he could not tell. It is nesii-
less, my lords, in me to remark how impio-
perly he gave his evidence, your lordships msl
have it on your memories.
The transaction at Wexford assizes bis ap*
peared to your lonlshins ; and the defteodui
has proved ve/y fully tne lady Altbam'sbefos
there at that time : If that be true as appnn
from the circumstances (which they raentios-
eti) of the lord and lady AUham's i^otng tbm;
to wit, that my lady and Mrs. Giffard weatii
a coach, my iord nxle, Mrs. Heath rode, nl
such and such servants rode ; I say, then tbm
was no appearance of a child ; thus, oolH^
qiiently , toe pretended birth must be ovcrtunwl
To disprove this, ]\Ir. Colcloii^^h is produced;
he was then on the grand jury, and so engagid
that he did not notice the lady Altham; id^
though it is allowed lord Aithaiu was there, in
owns he did not see him ; and by the very sant
reason lady Altham and Mrs. GiiTdrd migiii
be there, and possildy have escaped his bi^h:.
1 shall not trouble your lordships widirf-
spect to m-ijor Fitz^r^raid; he stands oppwli
to all the uiiior witnesses, in point of iuue,as
to the :!iu;i;)0secl birth.
My lords, J bo-ji: leave to observe to jrout
lordships, thai IIi;j;';finson's evidence is aiteaJ-
ed with a ufood deal of doubt and uncertaiatr;
111? said, he was at Dunmaine, and lh;!t laiif
Altham (whom he ne\er saw before) called lo
him, and gave him a glass of uine,aiiil 1m
drank to her safe deliver^': If tlie plaiatilT
thought him so material a \\ itness, how codki
it that his name was not given io at the be-
ginning of this trial, among the list of \!m
plaiiuiff's other witnesses, and not to iuinHle
him at the close thereof, without the defend-
ant's knowledge? But, my lords, it is plain bi
was only produced to stop a gap; hut frtnn
such kind of evidence the jur^' can discerD oo
which side the probability lies.
My lords, it appears (from a previous appli-
cation to Mrs. Heath) how sensible the plain-
tiff was of the force of her evidence, and tiicf^
fore a bill was thought pnvper to be filed for
prevention thereof; which plainly demN*
btratcs, that tlie lessor of the plaiotiff «M
nnd Richard ISarl ofAnglcseiu
A. D. 1748.
[1378
•f hh pretensions beings affected by the
6f ber testimony.
Hassey, tny lords, his attempted to
iict Mrs. Hetiih ; he says, be spent
r his time in Eoj^and, and he floorishes
teell J on himselfiu bis examination Jthat
raid talce him for a gfentleman of figure
itinction ; he tells you, that he ordered
vtLutM to put up the person's horse who
him wim a subpoena; that he has
affsd to come up to Dnbiin ; that he
I employ in one of his majesty's yachts
;land ; and when this affair is discussed,
mly a common waiter to the Board of
•cloth, and his religion prerented him
leing entitled to a commission; and
I be gives you an account of Rlrs.
's changing her sentiments at the second
snce differently from the first, yet he
remarked the same to her. But it is
seen to what purpose he is examined ;
en the stratagem of a bill could not take
this knight-errant (if one may call him
prodncH, ba?ing no other expedient to
111 Mrs, Heath's evidence,
lords, 1 must say, it is next to an impos-
' to imagine that lord Altham, who bad a
s estate of his own, and the expectancy
lord Anglesea's estate, should have a
late son and beir ; and that the Pallisers
vere acquainted in the family) or that
r Mrs. Lambert, Mr. Elmes, or Mrs.
i, who (as plain liff''s witnesses confess)
lady Altbam, should know nothing
f; nay, that even the neighbouring
I must be strangers to it.
lords, How can it be reconciled to the
on rules of prudence and good -nature,
' lady Altham had a son, she should send
[Id to be nursed by a mean woman of an
ute? by a woman who had criminal
erce with her husband ? Surely a lady of
nk and distinction would not nave made
of such a nnrse. It is plain then, that
ppo8e<l birth must be only a fiction com-
td with absurdities.
allow that the lessor of the plaintiff
be lord Ahliam's son by Joan Landy,
at lady Altham conceiving a displeasure
I her, and being incensed against tord
n for the dishonour done her, would not
Jvigsry Landy hi the house of Dun-
; and this seems the most rational way
, my lords, Laffan, Mnrphy, and Doyle
I, that a new room was furnished in
•'s house, and the child sent thither to
-scd ; it is equally improbable, that lord
dy Altham should not have more care
nderness for a son bora to such honours
ties, than to send him to a new-built
or to subject an infant to a cold and
disorders.
I very manifest, my lords, how ingenious
ndnctors of this affair, have contrired it,
e fixed on persons to be sponsors who
ng since dead ; JUid Ihongn they have
L. :^vu, ^
cooked op t ttory as artfully as they could,
they could not stifl frame it free from iroproba-
hiKty. We find that the sponsors were not
3ual to the birth, and one of the godl'atliers,
r. Anthony Coldough, was a Roman Ca-
tholic ; and if my lord Ahham had a sun by
his lady, it is presumed he would not have
pitched on a Papist to be godfather, who by
the laws of this kingdom is not qualified to
stand surety for a Protestant child in baptism.
But, my lords, at the time of this pretended
christening, the dnke of Buckingham wm
then living, lord Haversham, and the late earl
ol' Anglesea were alive, the duchess of Buck-
ingham was alive ; they were relations to the
family, and would not refuse being sponsors,
but would bare readily offered themselves on
that occasion ; so that 1 say, my lords, fiction
detects itself through the whole affair.
My lords, I woiud take notice to your lord-
ships, that the late lord Altham happened to be
somewhat extravagant, which occasioned bis
want of money, and therefore proposed selling
the Altham estate ; bat freuuent disputes arose
between the defendant and him, for not joining
therein ; but if bis lordship had a son, he
could have made a better title to purchasers,
as Mr. Prime Serjeant observed.
The two props which support this cause, are
the transportation and prosecution ; but the
tftle here contended for by the plaintiff, ought
to be proved beyond all contradiction ; and I
would beg leave, my lords, to remind your
lordships, and the gentlemen of the jury, tliat
on the death of the late lord Altham, the Al-
tham estate devolved to the late earl of Ansle-
sea, and nothing descended to the defendant
hot the title ; and therefore I would observe
as to the transportation, that as it appears the
lessor of the plaintiff wandered about the streets
In an idle way, it is most likely he voluntarily
transported himself. If the defendant appre-
hended he was to come into possession of the
Altham estate, afleir the death of his brother,
there might be some reason offered for the
kidnapping ; but as the defendant, the earl of
Anglesea,* could reap no advantage by so
strange a proceeding, the thing appears very
improbable and romantic.
My lords, the dnke and duchess of Buck-
ingham, and lord Anelesea, were alive when
the late lord Altham 'died ; and it cannot be
supposed, if he bad a son, but that they would
have been fflad to have^ taken care of him, and
that he might receive a proper educatign
suitable to bis high rank and qiulilv.
My lords, I humbly apprehend, there is ano-
ther incident very proper for the consideration
of the jury, thai is, that the lady Altham con-
tinued in Pnblin for about five months after
lord Altham*s death. It is surprising if she
had a son, she shouM make no opposition to
the defendant's taking the title of lord Altham,
or that some of his noble relations should not
have asserted his right.
My lords, aoothCT drcamstance occurs in
this affair ; that if lady AUhnav V<t^ % v«k^ ^^
1379] 1-7 GEORGE II. Trial in EJedmefii iOmeen J. Anneslet/, esq. [1S90
may be presumed, that some of the gentlemen
who took leases from the late earl of Aoglesea,
of the Altham estate, would have been glad to
haf e set him up, either in point of charity, or
humanity, or perhaps out of aversion to the
late iord Angleaea.
My lords, we may infer from Mr. Tighe*s
bebafiour to Mr. Aonesley, that he did not
believe he was the son of the lady Allham ; he
b a gentleman of character, and it cannot be
supposed, that any man susceptible of the least
generosity or g«iod nature, if he had any ap-
prehension of the plaintiff's legitimacy, would
admit him to be a turn-snit, or wear a livery.
Moreover, Mr. Tighe by njs profession, being
bred to the liw, must know what proper steps
were to be taken by the lessor of the plaintiff,
if he was lord Altham's son, to recover his
right ; but his not troubling himself about that
matter, is a strong presumption be had judged
bim to be what he nad heard, the natural son
of the bite lord Altham.
My lords, as this is a cause of the greatest
consequence that ever was tried by any jury,
it must be a singular pleasure to ever}' person
concerned (and 1 am sure it is so to me) that
jurors of such worth, honour, and probity at
this time, are to determine an affair of such
importance; and as nothing but justice can
.influence the minds of gentlemen of such dis-
tinction, I hope they will And a verdict tor the
defendant.
Eaton Stanyardy esq. recorder of the city of
Dublin, for the defendant.
Mj^ lords, and gentlemen of the jury, the
auestion to be considered is, whether lady Al-
lam ever had a son ? And if shu had, whether
Mr. Anncslcy, the lessor of the plaintiff, is
that person ? And if this cannot be proved
clearly, the jury cannot rely on presump-
tions.
My lords, it was thought proper to introduce
two riii8carria^cs pre^ iuus to the birth ; the
plaintiff pretends to assi^^n as a cause of the
first miscarriacfe, the breaking the China sau-
cers. Tliis piece of eviilonce appears very
improbable ; because destroying the cups was
intended a respect to mv lady. Can it be con-
ceived, my lords, that ford Altham, who was
10 solicitous for a son and heir by my lady,
would not be more cautious of putting her into
irights, wiiich might endanger a miscarriajje ?
And it is suiticient tu rlestroy the credit of Mi-s.
Cole, tiiut the account she gave of tiie abortion,
•hould be communicate d to a yount; child.
As to the second miscnrria;^^, there can be
no colou!' io have the least reliaiicc on the tes-
timony of Catha/iue 31*Ccrniijk io support of
it. It has appearod, my lords, that Mn». I3Iake
is a relaiiori to the fauiliy, and vi«iitc(l lady Al-
tham in Dublin at the time J>i'Cormick pre-
tends the second miscarriage happened, yet
xny lady never told her a word of it. Mrs.
Hannah Shaw swore that Catharine M*Cor-
znick mentioned to her that lady Allham never
lidaciiiidi aud 3I*C(iriuick fat ther signified
\
to Mrs. Shaw, bow application wai made ts
her by a person who uaed to get evidences far
the lessor of the plaintiff; therefore UOir-
mick'a evidence can have no weight, and if
proved to be f idse, bringa a disrepute on aU ths
rest of the evidences.
As to Mrs. Deborah Annesley, she ooly
swore her brother drank the child's health,
which can avail nothing.
Now, my lords, let us see how this pretasM
birth is proved. The pUintiff 's witnesses say,
that a midwife was sent for to Ross, and ihxi
Dennis Redmonds was the person pitched
upon for that errand. Can it be presumed that
if lady Altham was in that condition, that eve
would not be taken that a midwife should be is
the house some time before the birth, and not
be under tlie necessity of sending for one the
moment she was in labour ? There was nobody
to assist her hot Mrs. Heath, and none al^
tended her ladyship but a chamber-maid sod t
laundry-maid. Every expectation, my lonis,
from such a birth would mduce better atkn-
dants and more proper nurse tendera.
It is surprizing that Redmonds sliooM rm
know for what purpose he was sent, and ikabc
should leave the midwife in the yard iritboac
taking any farther notice of her, aud iro inm^
diately to the stable to take care of his barv,
which it seems he regarded naore than liie
midwife.
As to Brooke's testimony, my lords, it ii i \
heap of nonsense and absurdity. He %wwt
he was a piece of a surgeon tor 47 yean, aiiil
was so 10 years before the birth of the child, <
and yet is but 50 years old. He aflcrnrdi
said, when he was cross-examined, thithe
practised surgery since he was four years oM;
and says he did not consider what quaniilv n
blood he had taken from lady Altham. \U
said he had a farm at a place called Farvfa,
near Ross, yet no gentleman of that Dc>;rti-
bourhood knew of any such man livini; there:
Besides, my lords, this must be attcniled nub
all imaginable inconsistency : It was uoctn^ib
to meet him at home, but there was a certaini)
of meeting a surgeon in Ross, and one better
skilled in his profession. So that on the vrbdr.
what regard can be paid, my lords, to cviJero^
so diametrically opposite to all the rulei mI
probability.
Turner is a witness not to be credited ; the
manner of his faultering in bis ezaminatioD io*
duces a suspicion : He fixes the time of the
eclipse ten months after it happened ; but it
seems he was not prepared to give any answer
to that period, 8o that we tind when th€^
witnesses are taken out of their course, they are
at a loss what answer to give.
Scott says he used to come to Dunrnaioi
with hovv-do-yoi/s, in enquiring after the cbild'i
health ; and that he delivemi message* ta
Jjaffan, and sometimes to Ridpb ; and that
Rclph was butler at tho birlh of the cbilil,
though Rol|)h and Laffan swore they never ss«
one another before the day of their examiuatioo.
In Gnoi he stands in opposition to the plaistiiTi
tSa 1 ] and liichard Earl ofAngieita.
Mh«r Iribc of vilnesEc* ilmul Holph li«in^ io
nunmBJiiL- at the time ortiie birth.
GiBanl'* testitnony, my lords, is sup-
|>on«d by ihe ErmnU of the Irtmily, that lady
AUhaiii wiu at Wcxlbril niuizes, and lodg-ed at
•HM Bwceny'*. Mr. John Kerr hat priiveJ ihe
titBe fif the amizei, Bud tint lord chief justice
Foster went that circuit. This is a cireuin-
vtJtnce Tcry mnterisl, anil tlint eotin^ly nver-
tonu the pbinlilT'i vvliule system ; for bv the
■tlaialilTs eiulrniw she mint be with chifd, or
IjiOK'ta at that lime; nhtch cuinot be true,
Wcame she was then in Wexford. And lady
Ahham could not be brouglit to bed id Hay
mb*e<)uentlo the unBei, because she was the
tSih ot that munlh (beingibe hirih-dny of king
Geargi the firal) in Dublin. And I mual beg
1«*T« to tny that Itlr. Colclouith ilid not ile-
■trojr k tiliie of nhat Mrs. Gilfard anore ; for
he aaid, be did not see Ion) Alttiam then at
Weslord ; yet Hie^iisDn paid his lardabiji 90J.
there, and Mr. Cotcbugh roiglit as probably
kare orcilooteil lady AUham tlierc as his
lorJsbip.
Uary Doyle and Eleanor Murptiy are quite
SOOtrary to one Boolber in pninl of cTideoce.
Doyle aay* the child nucbristencd in the big
fMWUr, and Murphy swears it was in the
yrikn* room op one pair of stairs.
A« to Higcisson, it i« plain he is produced as
• witneu tu iotenperse false facia with real
«na} he lays, he only received the rents of
Ibc eMate near Nanov VValer, hut nut of the
AoMcsUle: HedescrihespartoriadyAliham's
tlraa* t that she worn a while apron ai»l a
-wklle band kerchief, and adds thai her lady-
abia was big wiih-ohUd. Is it probable, my
ioraa, that she would cume down two pair of
Wain and call fur wine for hini, and all this
obile he was on horsebaftk, and would not
«*ra voucliiafe lo pay her ladysbipHlie common
compliment by ali|[hlin^- ? Nay, it can't be
yrcaumedthat a lady of her high spirit would
«iMne down stairs, but would have chotn on
■neb an occaeion to t?nd ber servant. I must
repeat it, that here a false fact is tacked to a
rati fact by the ingenuity uf the tnaniijers, to
•pvA a ruhiur ta the fiction.
f come now, my Innis, to the leEtimony uf
-Catbanne O'Neal, which I can't help catling a
■ceoeof iniijiiity. Hhesays, she went lolady
-Altham iu Crou-laue iu Dublin, and told her
4ke circumilauces nf the child. Is it uaturat
to inagino that a lady (loat to all cotofort, being
<b«a aeparaied from lord Atthatn) should be
told, that her onl v son was begf^ing ahuui the
•MTMts, and wmdd oeilhcr euijuire or send for
■fcim ? This wiinesi says farther, that ber lady-
•bip'a reasou for not atlmilliai; any of the ser-
vaota lo carry the chihl to see her, was, fur fear
k might dccafiion Iketn to lose their places.
Can it ba presumed, that a dwtreasei) mother
wonht set a jfrcaler regard on what might bare
bapptnwl to a Mr*anl, tbao on the welfare of
kK only child, or that abe would have neif-
Kbim in thatnmoaer^ No, my lordi, Ihe
xnilnry nuit be aoppoaed, vid that the
A.D. 17«. [I3S«
would have been glad tn see him at any risk,
(hat proper care mi({ht be taken of him.
But aldermau King's testimony dcura it ati,
that my lady had no son ; for il she had, sua
would most certainly some time or other Iia*«
spokeof it while she lodged at the alderman 'a.
And would it not be thegreatest aatislitclian to
berself, in cue she bad a son, lo bring him ta
England along with her? The duke anil
duchess of BuckingbsTD, and all her relation!
in England, would bare received with pleasure,
and educated wiih great care a son, who
might in lime by his rank and fortune becotna
conspicuous. Besides, my lords, her internt
as well as nature would have induced her to
it; for al\er the death of the late lord Al-
tham, lady Attbnm might become guanlisn ta
the child. She bad a natural right to that
trust, and out of great estates, large allowance*
are given to those who are entrusted uiih the
cai« of children ; and where such a trust de-
rolres on a parent, otherwise indifferently pro-
vided for, that incident is of some weight with
B couK of equity, lo be more liberal in ihciral-
tnwance. Tlie^e considerations might be ad-
ditional motives to induce her to take care of
his education, and espou«e his interest ; and ai
none of these ihingi appeared in evidence, it la
contrary to all reason m the world to imagine,
that the lesEoroflheplainlilfcanbe therealor
legi^male son of Ibo lord and lady .lllhsm.
As to the trans porlalion, your lordships will
please to observe, tliat Cromie swears, that
Skellem made entriea iu Stephenson's book s,
for fear of being imposed upon, of the several
persons that went aboard, and that the clerk
t^nm'? aboard, and took a list of all persons, and
called then over on board before the abii*
Miled, and every person walked by as be an>
awered to his name; and though the boy
might answer lo the name of Annciley, tha
master of the ship might pronounce it Hen-
iiesley, and write it so ; and when he went to
the 'Tholsel In give io the names to Mr. Gune,
the town clerk, he mighl spell the name Hen-
iiestey instead of Aone^ley, and tbrreby oc-
casion a mistake in Ibe Tholsel book.
But, my lords, can any one pretend tnaay^
if the hoy was forced away, that when Air.
Skellern the clerk came on board to lake iba
names, the boy would not have complained of
his misfortunes, anil uf his being taken sway
by force, or made some clnmnur, and tben ha
tnigbl hare l>ecn redressed? yet it has DBver
appeared, that tbo plainliU' made any such
complaints.
It it very evident, my lords, that Doindualty
ha« been warning in the plainiilfto seek ouifor
witnesses, in order tu deprive Ihe defendant of
their tmimony. How cornea it, that a dinner
of lamb and other victuals, has been aeol by
Mr. Mackercher lo Rulph'ii bouoe r Why woa
there apidicatiun made to Itolpb by liim?
Why truly, betausc he was informed, that
Itolpb was in the family, and that be wa« a
material wilnesa.
My lonla, 1 inutl take notice lo jour In
ttU] l^QtOKOB tL Trtql.m:EjectmeRt between J. AnHulet/,f ij. [m
•xaaJoMl for. Hm dtGnilMrt* k van «m^ i
■bnogb Im4o« BM t»k« UMi UmMf t» ««Mi
MM poiilita titati jpHA iken wbt b^*wim
VM mw, ud ihwild hkv* ««i(i« «i4i tb»
fcn WwHMiiin. Ww h. BBtnnI vkM br
» haw HffWflMM »itli. tw
WMHH r^ Ba faM ^n fl*i»i t» wiKUa
SMMb to llweaMMi or Ui nataaaqri l» ■« iiqr
MMWwtrf UkmmI mtb} bM if fe> eww
kM* to W^ tralb, what oMMcn ma Uttn
«• hdtora ba «•■• mw <
iImm ba baa aoMwod ta.ba7
Mrlwdi, Aa rliMiTa I
>MtplaJ to ba wppartaA wilb tbe riigbliit
iraok - Voor Inriihijw, aad Dm gwtiwim of
Ibcjafvitill taka it intotMr ooaademiion,
what olgaatiaaa faavaheaamub latin fUaHS^
iritBMaa^.haw laaoaawHW caeh eoadf Umim
baa kaaa with bhaarif, aad baw inmaiiatart
IfcajbaiabMBidlirilbcaehatberi aadif.tba
Inair «f tba pUafifit ta pro** hia hgitlBaa*,
il abanU ba by padtive aad aacaamiWitiWa
avidiBaai aad aoa hr MggBitiiin or pMawp-
liaaa. AnfnaaadMih^aiylordt^iaaafaiJMry
•a I ha lai^nil doaar, to tba rcmrindai torn, to
a^ibip abanU aot cteiin il wbUit
i fear I bafo tfupaageJ too much on yoor
lardabipa* time, and on the gcaUenMa of the
ffir, and iball only obaanro, tbal tho defea-
t i* now poaWMed of the aataU of ibo
" "m birth il Daqnealioaible, and
I BDOcrluoiy in
laoftha' - -
fttoily ; aad aa hi* birth is Daqnei
tlial ibere ia all tba doabt aad a
UN world alKiHliu[tbeprctca_
of Ibo ttlaiolif', 1 hope tbe leDtUman of Iba
jaiy will Ibiofc a v«rdi«t ou^i to be Ibond for
the defendant in poauauon.
Court. GenllemcQ of ibe Juryi trill joa
l^teaaa (a Uke any lel'reihnwnt before pUDtifiTi
•oanael begin lo (peak to tbe erideoce on ibeii
ridaortbeqaeatian?
Jury. Wehombly (bank your lord(hipa,wa
•hall be glad lo refrei houraelrea. [Il waa now
between four and fi*e o'clock in Ihe aftemoon,
wheu Ihe Jury refreabed Ibeonelrea for about
half as hour.]
Ccurt. GrAtleaieB of coonael for Uie lenor
of tbe plaint, pleate to proceed.
So). ManlLalL Hy1ordi,andToagaatle«en
•fthejury, I amia tbiaeauaeoF couaael with
Hr. Jaawt Anncaley, tbe Immt of tbe plaintiff,
■adlbe&en tberatiaaaearoabeanaainalaooe
ia aay age, of aach a aeeaa of iaiquty, cradly,
•ad iabtnaaoity aa tbia, with wkicb Ur. la-
Jtoalay bai boeo peneeuted fitr Iba oaaiw af
■MBj jdiat ho hM baas Mnnfad^ Mw>
ported, and koIiI ua slarerorlhirlHiiuiW'
teen yEar»: ibeTery Tedlalof ilnufliuai
oampusiaQ ia every human bitta; udiU'
bit slavery was ex|iired, lie came inie Ei|lai
loimert hit ri|{kit, but hul Ibomahtwa
ahoot a maD arcidentallj ; and ihra lkd»
randwit (1 am sorry to ineDtiao il) owlaDla
itidict bim liir murder at the Mwivw U ih
Old Bailey, held Air a gaal'delofrjUlii
tily ut'Lunclonaiid county of Miildk»i.«bi
llie lewDv of Llie pliiiiiliff was tried, uui '
alily aci|iiitte(l.
Hylnrils, tliedefeDdiuit'aoauDHliDOpMUf
Ilia case, Eeid, lliuy woukl pmia tht fUoM
npptieil lo sevirTBt |«>iplB, and lolil lUo b
would be pleased to go o<er leiu, ud ihoit
was iiul kidnapped ; and ibal ■tofnraiofna'
pulsion was made it»e of to Iraai|xirl liM,^
tbal be wcul abniad loluiiUriljri jit ith
gentleiiieii liave not atlemjtted tu ncn'tll,!
stands unoonuo* cried, ihat lb« pluilif «
iiiirited away liy ihcdeleDdant IMMrialtt-
glesea, tofeel llieeSecta ofslairr; m-taxmi
la subject him to the JiinijFrsef ihcKal.l'ta'
GtemeoGieii oidiflcrent ell males, with iaWW*
put an end tu a life lb4t sI-mhI iu ibv delnJM''
way. But tbe hand of PtovidtntD ta''
protected bim in ilie aiidM ot biiafflxuMiI
aduiiral Vprnon eonlriluitek to baii: bim t* I
dueled lo these kia^omi, and g««d baa I
f'urnithed iiim with I'riiNida nbeo hii1ife*a I
Ihinled after ; he nuw cuinea ialtiooailWial I
yoiir lordabips (« iup(>ort Lii imduubwdn^ '
aud shew the wurld th« Kciecitiea he aadertMl
My lorda, ibe letisur of ihe pisiutiff lutoi
Joungi about IweNe yeara old when Ix n>
iiiuBpf>ed aud iransporled, aud ibui depafd
ol au ojiporlunity otatserLiag his right, bt«a
abnuduueil and reduced lo ihe lowest eL^ tl at-
xery. The defend unt ibeearlol'ADglesea.U
uew additiuus ot honour and lille by tba |>!<iB-
tiffs misfortunes; and being of apruud, an
ricinus disposition, lempered with ciuelly, u
iuclineil tu oppressioD, (il is with reluutiaoe
meniion tbcse cbaracieiMJ could not tirar 'bU
boy iu tbnie low ci re u mi lancet nhould sacct*
lo Ibe Aliham estate and title, or he preiani
live beir tn ib« earl of Aaglesea. Espolisa
were to be found out to prerenl hia aniiini i
these honours, which were acoordiogly p«|i
eicctilion.
My lords, IhedcfendtintwDuh] cndearMti
OTerliirn ihc plaiDtifi~B right, by preieodiog i
joeu£cieocy of his etideoce ; but, my kn
this must be a vain pretext, since he kimm
was the sole occasion ihereof ; and as ib« tiat
puliation has been proved as clear ai ihcaa
day, tbe defendant, iheearl of Auglewa, m»
he contiiJered as a spuliator ii> law, and mi
not lake adrsulage of the diffieultima anaa
from the h ickediiess of liis own acts, to pi^
dice the plaintiff.
1 1' llie leSHir of Ibe nlaintiff at Ibe liaae af d
fatiil Iraasporlation, abaul IS yean tgOt b
h^u admitted (o proaecule bia fvU nf^ I
ibcn niiKbtbave had an opporluiiity of pi — -
bia Uitb bj dwmwtwtnrr, v-^^-'~'-
and Richard Rati of AnglcsM>
lerefoiT, by ibis mraas, Uie
riutlages a)iiin<l>Dtl^ luperior
t Irssor of llic plniutifi'laliauri
t disadvantages; and iDilred
alure ol' the thing, it is very
ax ibia (itne of Jay any of the
tiiwho prole biiuirth,bD|>|ieii
ul, my lord*, when I come to
enccsuu both sideK, and cum-
er, I bellere I Bliall be nble
liilily i
\D be applied lotbe
de, and that tlieydi
pnd all duulit the le^limacy
, niy lords, aome lillte vari-
liDce. bul thi» ia very natural,
isUtice ol' 3S yean since the
tiff waa born.
ball beg leare to lay before
id the f^Dtlenwn or the jury
plaintiff'a case, aod hope your
ilun me, if I bnppca to repeal
I fiirinvrly mentioned wbcD
of natin^ the ptsiDlifPs t\'\-
iroceeileU la the exumiuntjon.
d ma^t etidently, my lonli,
p{ireheiuioi>> that ibe plaiuliff
■Mine, in the cuunly of \Stx-
in ol' Arthur late lord Althaw,
dy Allham.
lema lord Altfanm was a pas-
I my lady wt* a lieUy puny
oiber rMMtit, which I shall
y, tthvB I come 10 tpeak to
I by dtfemlaut'c counsel to
IWBi thoiitibt {irap«r by lord
, to tend tbeir I'liild lu Joui
ted, who was married («i ap-
Ihe pbiinliff's Fviileuce) to one
lilor, by whom Joan Landy
ibe witneasea bare aaid, that
pA Joau Landy with child ;
ter be aa it may, after lier
rioa, ahe went to her falher'a
Is ofDaDmaiiie, anil there lay-
ire lailv Altham was brought-
>— Mylady aiupecled lord Al-
ther of Joan Landy's chitd,
t her ladyship receired from
i; btit being alter wanla roa-
lyhad a child by her hii^b.-iad
1 ladv Allhnra aent the lessor
V laoyBhip's son aod heir, to
andy ; arid lhou)rb the dc-
woatd etideBTOur lu ui^e how
-■' to h
e ^Dtlemen ot the jury, Iiave
•bol circa mapecliua was used
■ilk uf Fucluug'a wile, and it
oU by tke epiniwi of one Dr.
r of ibe plautliff woa aeiU lu
ed, sbe being apputvuJ a lit
lliat all |>ro[ier care « as
'• tioune proper
irpoK.
iMaaw lliat all |
for the receptioq of the child ; and thai lord
Altham caused a coach road to be made fi'Oi^
Dunmaine to Landy's house fur ilie conve.
tiiency of his lady's risitinu ihe child, Hhera
the child remained at nurse for about It
mDiilhs, until my lord Altham toiik him home,
and look the proper care of his jieriou aoj
eduralion.
And now I must mention that my lord and
lady separated on aceonut of an unlbrtiiaat*
suspicion of Mr. Thomas Palliser, and after-
wards my lord became familiar wilh one Mia*
tiregory. who expected his lordship would
marry her, in caseladyAllham had died. Slie,
it seems, was my client's bilter eoeray, because
sbe apprcbeoded he was a bar to ber ambition}
and bar in); a great ascendant over lord Allhara
she contrived lo set the boy adrifl naked to tbe
world, when lie was scarce 8 years old, and
Tery arltully gaTe out (bat the hoy was the son
or Joau Landy. And the hoy being thus abaa-
dnned, knew not what id do, but wandered
about the slreela; and the detisniUnt afler/
wards readily eocouraged Ihe report of his ille-
gitimacy, to aerve his ioiquiious designs of
uaurping liia tille, ami llierefore transnorlad
him to America in hopes he should never niQtB
be heard of.
My lords, we hare produced Mrs. Annesley,
who is married to a near relation of the de-
fendant, wh^ siveara positively ibat it was
well kaowti in the family that lady Aiiham bad
a son. Iftbe title of the lessor of the plaintiff
was a mere pretension (as conteoded for by tbe
geellemen of the other side) it is surprising that
the earl of Anglesey would not produce any one
person of his family in favour of his side of the
queiiiioii, ilioui;h he i* so well acquainted with
them, and might have influence enough Ip
produce ibera, if they could testify any thing
against tbe plainliif's right.
Air. tlfCE'!'''''! my lords, says, it was known
in Enubcorty that lady Alihaiti had a ebild;
and aldcriitan Barnes says, it was well knoifD
iD Ross t yet, I say, none of the family haa
been produced to declare Ibat it wna >aL
ktionn.
The counsel on the other side would eodw-
vour to lay a mighty stress on the meanoeti
and poverty of some of the ^plaiolifTs wit-
nesses : but, my lords, how trivial this objeclioA
is, 1 appeal lo your lordsbjpa mid tUegeDilc-
nien ofthejury. It ia impossible to keep wit-
nesses alire ; and we must prove nur right bjr
such witnesses a* itre living ; ilie plaintiff cane
lo Eoglaiul as early as he couhl to claim bi«
title.
Mrs. Heaih say«, lady Altham was viailed
but seldomj and but by rery lew neighbours in
that counlry ; indeed she says, Mrs. Piggqt
Tistted her fadyship; and I mubt own, in uiy
opinion, tbose tliat wtre produced were wt
suitable visitors br a lady of ber iVstincliaa ;
iLrrc arc uu women produced for the de-
tCDcUnl. wlio jnid her ladyship viuu, but ihejr
never viHted ber aJtur tbe Re{iarauon, nod 1 am
aliaid likcj au uot persons lo be credited, »l
1S91]
17 GEORGE II. Trial in Ejectment Between J. Annedey^ esq. [199!
pteate to oootider, that they all agree in a same-
nets of expression in their examination, and
knew nothinff at all in their cross-examination,
which must he attended with some suspicion.
As to the credit to t)e Ji^iven to those witnesses,
1 must beg leave to take notice, that Mr. Palli-
aer the elder seems to have lost all his memory
in this affair ; for on his cross-examination, he
.did not know when he was in the barony of
Forth, or when he lived in the Great Island.
Mr. Lambert happens to have the same misfor-
tune, be even ibi^ot the time he vi*as married,
«Qd some other drcnmstances. As to Mrs.
Lambert, it is sufficient to name her.
Mr. I^lliser the younger, happens to be a
Tery extraordinary witness ; he says, that a
very few days before the separation, lord AI-
tham had told him his intentions of parting
from his wife, tiecause he had no children by
her, in order to oblit^e lufsi Anglesea.
It is very unlikely, my lonls, that if lord
Altham was so determined, he would have
imparted his resolutions to him ; and Mr. Pal-
User said, he beti«fved that lord Altham did not
intend to kill him, he was so conscious of his
innocence; and alWr hu owned, that passes
were directed by lord Altham at his body, and
that Anthony Dwyer took the sword out of his
lordship's baud.
It has appeared, my lords, that a coach
road was made (as I already intimated) to
Laudy's, where the child was nursed. I sub-
mit to your lordships, and the gentlemen of
the jury, how the defendant's witnesses con*
tradiot each other in attcimplinii^ to disprove
this. Uutph said, there was no road made,
}^lms said the same, but with difficulty it ivas
extorted from Elms, that there was a road
ioaade ; for that there was a slough thrown up
at each side to make it passable, which was a
short way, as he pretended, for my lord to go a
hunting. Holph says, there was a coach -road
made on purpose to go to the church, and to
the mill, and to Mr. Palliser^s and ]\Irs. Gif-
fard*s houses, and that Mrs. Giffard usnaUy
came that way, and not round by the bridge ;
yet Mrs. Gificird said, she knew no other road
from her house to Duomaino, than the road
over the bridge. As thest^ evidences urc in-
consistent, the defendant entirely fails in his
defence.
"My lords, the defendant's counsel insisted,
that the child was takrii no notice of by lady
Altham ; but Lutwich swcnrs, that ho saw the
child with her ladyship at one \\ rit;rl>t's in lloss,
where her ladysliip went to iod^^^e utter she left
"Mrs. Butler^s. He further proves, how the
child was taken away by stealth. Marr^'-aret
Hodges says, that lady A'l:!]".ni mcu'iioTi.?d her
child to her at aldermaa Iwiu^'s in Dn!)!in ;
and Mrs. Heath thus fur af>reeiu:^ with i\ir9.
Hodges, that lodi>ings were taken on the Quay
for lady Altham bctbre her ladyship went to
k>dge at Mr. lvin<{*s, and that a pistole was
S'ven in earnest a:id returned, coulirms strongly
e testimony (»f Mrs. Hodi^es.
Aly Ivrds, as to aldsnuan Kiug^s testmony.
it only amounts to this, that lady Althim did
never mention any thing of her wd to bin.
This may be easily accnunted for, beetoiefcrd
Altham fbrbid the child to be brought to bit
mother : lady Althain's conditioD et that daw
is well known ; she was confined to her ebui-
ber, and could receive no intdligenoe but from
Mrs. Heath.
Lady Altham left this kingdom in September
1734, and it has been proved by Herd, ooe of
defendant's witnesses, that the cnild was in tbe
care of lord Altham the Auffuit preceding Unt
September, so there was only a naonth betveea
the fatlier's deserting him and ber ladyships
going out of the kingdom ; therefore it b doi
extraordinary that she did not bear of her
child's misfortunes. — But it is undeniable tbt
the plaintiff was taken care of and edocattd
as the son of a nobleman, and likewise acknon-
ledged by lord Altham as his son and beir. Vr.
Misset, a gentleman of an undoubted charMter,
proves, that the late lord Altham raentioafd b
nim at Kinnay, tliat that boy (meaning Mr.
Annesley) would be earl of Anglesea. Ifr.
Charles Bym swears, that lord Altham tontal
him at Carrickduff as his eon and heir, and le*
knowledged him as such z and this witneBd^
dares, that he would have resented the pUii*
tiff's iieing brouglit to his house if be ni
thought the natural son of hird Altbam. Mr.
James Cavenagh acknowledgeil )ikewiK,tbii
he was treated at Carrickduff as lord AlihunH
lawful son ; and I believe the defendoil vl
not contest the veracity and character of dios
gc-nllctnen.
My lords, I must beg leave to take some ro*
tice to your lordships of the circumstances ot
lady Altham in London, to obviate iihtt 'Ji-j
gentlemen say as to that point, and to accouat
for her ladyship's not endeavouring to sff^*
the plaintiff's title. It was proved by Mn.
Heath that lady Altham had 100/. a }'eir \>
live on till the death of lord Altham ; bat if
she liapponed to survive him, then she was o
have nothing : therefore after his death hfr
ladyship was supported by the booaty of tbe
duke and duchess of Buckingham : and eoosi-
dcring her condition and the distance of kiDg-
donis, she was incapable of asserting the plsin-
tiff's right. Besides, the infirmities and sick-
tiess she laboured under might affect her me-
mory ; and it may be presumed strongly, tlui
she imagined he was dead.
My lords, by the limitation of th^ settleont
under the will'of 1701, lord Altham bad bfit a
tenancy for life: the first will limited theestilt
to Itichard lord Ahham for life, remainder to
his issue in tail. It was undoubtedly for tlii
honcfit of lord Altham, in point of raising monfj
hy sale of reversion, to have deserted nis ino,
for he wax then under age and could not joii;
besides, if lie was dead, or put out of tbe MV,
the estate must of course come to the defim-
danl ; so that by the defendant's joining irilb
his brother, the late lord Altham, they could fks
easier raise money by selling such part of tki
estate as they thought proper.--M9reoTcr| vj
and Ricluud Earl <if Aitgteiai.
A. D. 1743.
[ism
Grcgorjr bad such an BMi;eniliiiit f imporlatice, and as all ihescUoflhedefeniluilt
lli«iii, lUiil alie could L'ail him u | iiiiluce th« siri>ng;est beliel' ot' llie indubiuU*
proper (u I remtrkEil btture). and right of Ibe lessor of tbe iilainliff, and raiat
Bteresi m previiling on lii* lord- conanjuently E(i|iport hi* |iroofi and weak«i^
-^bissomuidieawuiiied iheiitle , tliuse «!' the defendant, I humbly bo[i« ibCi
m, and «xpein>!d ifshe had cliil- \ gentlemen of Uih jury will cDiiwUer it w<^)|^'
7 mitcht Bucirecd to (he eiilate : and give a trnlicl agreeable to jusllce, whicbi'
^raiity an imperious miiirewi, ibat I doubt not wtU be for my client the lessur ^
nobkman wm induced tu abanijoa the pUiuliff,
tba Iranaporlalinn htiinf; nn ncl of
U'a, apealiv alrongcr ihiio wonia ;
lilt eslablish « iiresuuipiion of the
;ht; and do later ihaii last Saiur-
by Ihe eridencu nf Air. Stone, ai-
' been made lo disjirove I'urceH's
rhicb ulieiiipU have berii retidered
\ lerte only tu coulirui the truth of
t uf Aimeslc^y nod Heiiueiley are
n each other, and ihiiikiic diatiaci
d lleouealEy not heini; uteiitioned
-'shook imin reason tfial Annetley
rmuilbi:tbeName[iGriiou,becau*e
,ipear( by the Tlniltiell liook» lo
lileiittirod Wore the 3 jiii of March
Ar. TJgh HweHi-s. Mr. Anueilcy did
a bnuie till April nSB; and Ihii
itroDg presumptioD ihal Auiirsley
Honimley who vyas indeolureJ.
I ahip did not sail till ilic 3iilb of
ta apprared by Suplienwin't liucika)
pDn'a list nag lakeu junt butiiru Ibi:
aereral tint were iiultniurerl aflir-
*Hy ; it Bppearinif thai above luO
tred, and onJy UO persona itere iu
lliat.
inljiiuilenceuf couimiliiiig nn evil
npFU day, we have loo many in-
nf fiutB tbe misconduct of acri-ral
if the lessor of the plaintilThad
red at the Tbotsell, Mr. Gune iLe
Buit have known him, aa lie was
fitU Ilia father ; ainl il has a|i|>cared
i «ery Mrict eni|uii'y is luaile at the
W fruai llioae Ibul uo lo ibe plan-
her ihey indentured voluntarily or
M>ca it iblluws, that the lesaur of
ivaa leoretly kidnapped and Irani-
d'a leatimony itands uuimpeacbed.
_A1 coofi'asei) to him the just title of
the plaintiff, and that he was hia
Bl and tkou|[h be mi^lit be sup-
^BsioQ wheu he expressed those
Buot be presumed he would make
of aiirrendering lo Mr. Aonesley
llcsa he was conwioUB that Air. An-
■wfully eolilleil thereto.
Ui lianau, my . Ionia, unlbitig but
rath could rnake ber aa cnusialeut
She baa been examined a second
ittaiwe of three daya, and rc-exa-
ad orer agraiu the tliird and fourth
rer vaiied in hi-r lettimouy.
,U>ia being a cause of Ibe greatest
rit.
Mr. Serjeant TitJall, of counsel far Ui^
lesaor of Ibe plaintiff:
My lordii, and you gentlemen of the jury,
I am counsel of ibe same aide with Mr. 8er-
JL-aiit IMarsliall, litis ia certainly a cause of
the greatest consequence, and 1 am sure from
your wisa eonstderationa, it will feceive its du*
'determination.
I shall first think necessary to observe, that
from the circumatancea of the ploioltifa easet
and the death of partiet, it wna natural lor soma
of the wiiueasea, in the space of so many yeanu
lo foi^et some things with respect to lime ana
place ; variations of this hind must necessarily
iiappCD in a course of evidence aller ku king ■
tine ; but thu principal fact remaiDS true.
Tbe matter in dispute, my lords, is attended
with a very particularmiallurtune on tbe aide of
theptaiotifl*. Mr. Annesley'a father, the' late lord
Allliain, had no relations in the county tvliera
the lessor of the plaiDliff was born ; uor had
hie Qiollier any relations in this kingdom,
irltich iu a great measure accounts for thai
circumslBuce, ibat there are not people of rank,
or relatiuus in the family tu prove hia legi-
timacy,
My lords, the defendant ia a peer of Ihit
krugtium, and of England, and is in posaeasint
oCa great entate near the place of the plaintiff^
birth i and as must of tbe inhabitants ara
tenants and acc|unintance of the defendant, and
under hia inlluence, they might not be ■•
eunily prevailed upon lo give evidence here.
It has been prored. that the plaintiff wa*'
Iranapuiled out of ihia kingdom to Amcric«c
in an illegal and iniqiiiluus manner, wben h*
was about 14 years old, and having not rca
turneil tilllalely, be must be ignorant wba(
wilneaaes were living to prove bii birth, till ba
made a diligent enquiry ; he must be obliged
tn the friendship of those who voluntarily
offered themselves; and now he does all ha
can, by offering theoi here iu court as eti-
Hy lords, it lisa not been attempted lo b*
proved bv anv of the delendant's evidencM
(except lloliih) that any iDipru|i«r applicalian
has been made on the pUintitf'a siila for «ii^
dence ; hut the account Rolph givea is very
incouaistenli Is it probable, my lords, ihd
ftlr. Mackercher, at the tirsl siglil, would olluA
ttnlpb a lieuleiiancy in pre«euce of two olfaev
persons, and there*by put il in Ibe power <^
Itolph lo have ruined the cause of the plaintiff t,
or that wlieu Itulph refused il, as he sayii, tlia(
he would bnve gone tu him a second tunc, Uf
ask him auy tjiicilious in --'-'— ' — '—' '^"
1395]
Efe^hneni behueen J^Anneskyt
Unt proposed to him, wben fbar other persons
who were straoffers were present? No, my
ords, no rationalroan could be guilty of such
s piece of misconduct. If any oflers were to
be made, they must be made to people in a
lower condition than Rolph appears to be,
from his own declaration, who would be ready
if they met such encouragement, to appear here
and giro their testimony.
Though Mrs. Heath mentions how she has
been applied to, yet she is silent as to any
undue means ; so that in fine, Rolph was the
only person pretended to be tampered with,
which shews, that this part of his testimony is
▼ery incredible.
The producing Mrs. Bhike, my lords, is a
great arcfument of the plaintiff's sincerity,
and that be intended to gi?e eridence of e? ery
thing that could gire the court and jury some
light of the matter now in controversy.
1 shall now, my lords, endeavour to speak
to the evidences on both sides, and hope to be
able to shew, that the plaintiflf has very clearly
proved his title. Eleanor Murpliy, and Mary
Doyle, agree as to a positive proot of the birth
and christening ; the little variations of time
are of no signincancy ; thej^ likewise prove,
that Redmonds was sent for a midwife ; and
Redmonds proves, that he went for one to
Rois ; and further says, that he was spoken to
by colonel Palliser, in order to prevent giving
his testimony ; and the colonel owns, he had
some discourse with him to this purpose,
previous to his examination.
Brown says, there were bonfires and re-
joicings for the birth of the child ; and Scot
swore that he was sent several times with
messages fi^m Mrs. Pi{;got, to enauire about
the child's health, and that it was tne reputa-
tion of the country, that lady Altham had a
child, which strengthens the testimony of
Murphy and Doyle.
My lords, there can be no manner of
doubt, but that there was a coach -road made,
as proved by the plaintiff, for the conveniency
of lady Altham's going to Landy's house,
where the child was nursed. Elms at first
denied the road was made, and afterwards
ov«n*d it, as Mr. Serjeant Marshall has fully
observed: But I must remark to your lord-
ships, that Rolph says, a coach-road was
made before the nurse's cabbin was built ; and
that the cabbin was built a year before my lady
came to Duiirauine ; and he further says, that
the road was made on purpose for visiting Mrs.
Giffard. Surely, my lords, this must be false,
in regard lady Altham was not in the country
for a long time allcr the road was made, ac-
cording to Rolph's account, and there was no
occasion to visit Mi-s. Giffiird before her lady-
ship came to Dunmaine, and consequently, it
could not be made for tlie conveniency of
▼isiting Mrs. Giffard. Besides, Mrs. Giffard
■•ys, she ahvays came over the bridge, in
contradiction to all the other witnesses; there-
■ore it must be supposed, that the road was
«»de 00 purpose to tisil tile cUUd •, «L\wi the
great endeavoan uied by the defewiant to
overtom the plaintiff'ii witnessa iu this paiti-
cular, shew hit apprehentioo of the canse-
quences of this drcamstance.
My lords, the defendant cndciToors to ky
great stress mi the meannas of the drm
and appearance of some of the phmtiff^
witnesses ; but this canH be |ii aiguomt
against the plaintiff's cause, becanse be naU
make* use of what proofs the nature of ibe
thin^ will admit, and of such witnenes ai
are living, that conld give an sccoonl of Ui
birth : and such are those who happened to k
servants that time in the house ; and thefildc
variation of the circainstanoe of tine ui
place, ought to have no weight. And m M
Redmonds, however contemptible his apsor*
ance may be, he was a person fit enoi^ lor
the errand to the midwife.
My Iwnls, I shall next proceed to oar wit-
nesses, who prove lady Altham's piigiif}
and miscarriage. * Mrs. Cole gives a vcrr cr>-
dible account of the miscarriage ; and tbsgh
the counsel on the other side, have hboofcd
very hard to shew that a child of her age csaU
not be curious enough to enquire into a ikke
of this nature, yet tne contrary may very ra
be supposed, as she probably never saw aiy
such thing before ; and therefore it was vtrj
natural it might make an impression «n her
mind. A person of an advanced age mf|k
very well be ima^ned not to hare a canmtj
on such an occasion, as perhaps having Mfl
a thing of that nature Wore. GooM thi
circumstance of Mrs. Cole's testimony k
intended for any particular purpose ? No, m
lords, it could not; because she could aere
dream, nor was prophetic enough to knos.
that she should ever be called upon here to gin
her evidence ; and though she and Mrs. Hath
differ in their testimony about lady Altbas'i
going to Vice's, this can be of no great con-
sequence; and 1 appeal to your lordships, isd
the jury, from the rational distinct manner Mn.
Cole gave her evidence, whether she or Mn.
Heath deserve greater credit.^
Alice Bates, my lords, swears to lady Al-
tham's pregnancy and miscarriage at Vics'ii
and as to the obiection of the freedom used by
lord Altham with her, (as she related ia hk
testimony) we see that gentlemen and laAn
very frequently admit their servant maiditp
make free with them, and particularly on sod
occasions.
My lords, Mr. Turner swears, he wot H
Dunmaine immediately aAer his manisfe,
and as this gentleman resided so long in oc
family, he could not mistake, as to time or
fact. He says, lady Altham was then pRC-
nant ; and Mr. Higgison swears, he saw mj
Altham with child; he is an unimpeacbf^
witness, and by the circumstances he ooserrcd
in his testimony, that he was bound forkri
Altham for the sum of SO/. ; and furthOi
that he was receiver for his hirdsbip for part •■
his estate ; we have the strongest reason to k
cQuvinoed of the truth of his testimony.
\
»]
and Richard Earl ^ Anglruu.
A. D. 1743.
' ' Hv \oti*, 1 tliall DOW contiiler the ntgalire
■noU or Uiljr Allhaii/o [irv^nsiicy i nnd 6nt,
I ahtH Iwf in with MiHie of ihe sefvanu of llie
hdUM, prudDcetl iiy ihe dereailaDt ti>r this
pviot. Oweu Cavenagli owns, titat be was
■bVBt for Hume time fioco Uunmaiiic, tinJ
llwl he lell tito serrit-e t'ur twme time, end
nlurnnl thilher again; llicrelore W he iliil
MH ct»dUiiii« caoMtiilly iq (he houae, there
> eonld be Du certaiuty in his etidence ; because
kdy Alltitin might tie bruugbl lo bed when be
ma klavut, wlieilicr be wm in tiie service Of
Botiifa, by ail Ihe pluotifT'i
!• kate lord Althain'ii wnioe beture ibe birtli
•f llwcbild ; and u hia lestimomr with rcsneot
•• the coach-road appeare |'> betatae, bis whole
•vidnce <Hj|[bi to be diacrcdittd.
ADtboDv Uwyei, my lurUx. contrailicla all
thm ^feniiBiU'^ wituBKir^i i for he Mys. there
w»>ii«chiM at the buuM el' Duam sine alter
4a •epamioii, tlierefute he oueht nut to be l>e-
Jiand.
Hj hitih, ynur lordsliitis, Uid thegeullemeii
of llie jury will pleate to coniider, that tlie
■anolii UD tbe (ilainliff'a side are poailite eri-
■muH. Moriiliy, lioyle, Macorniick, LaJTan,
■ad Kedoinudt, who were servBDts io ihe
bBIU«. Mrs. Cole, and Mrs. Uriscoe, Alice
Dilai. major Fitagerald, Mr. Turuer, anil Mr.
BlHtBOii, SoM, aud Brooks, these are all eo-
^MjF opposite, with respect tw the pregnancy
aid Bttcarfiage, lo Ibe other sercftDts (the de-
te^Lal's witnesses) Heath, Dwyef, Ralph,
IWfs, and Ca*ens(cli ; but as ihe evidence in
fcabalfofllieplninlifi'ig pnaiiive, it iDiut be con-
ddeml io a stronger light, and oulireigh the
4sCsadaul'i( e«ideuce, as to liie piegoancy aod
; llierelbre (he lUflorBtructure which the
daiM biiilds on such a rouodatioD, musi
•Msa^eally tall.
Mf lords, I shall now lake notice ol' those
iWilaasstn on (he part oi' Ihe del'endant, who
■k«. llial il was Dol reputed Ju Ihe counliy that
My Altliam bad a child. 'Mie first person,
,tmj laid*, rxamioed (otitis point was colonel
I>*flus : but (bis KontlemaB's teslimany is no
awn tkan that he litetl about leveo or eight
SBsks Irsm Uunuaiue, sod bad no acquaiiil-
■maot wiib lord or lady Allham, and knew no-
ttmiK of the msuer iui|ueMion ; so that it is
SUd,lh« iBleoliotiof ptuduciug bini was only
att« a tort «l' dignity to the cause.
CaUnel Pslhser, my lords, is tbe n«xl eti-
^MM (or tbe defendant iu tliis respect : he
tmym,he neccr was absent from DuniDaine above
a week logetlier, and ullc r wards own i, be was
absent above a inoo(b nt one time ; 1 fear he is
toe nwdy and forward a wduess. In one par-
licislar hs seemed au agenl iu the cause, by de-
. ■ring Rcdmsods aot to appear, on pi'etence
llial Ttis evidenoo oould aigoity notbing ; and
ai Im has shewn a gooit deal of incliiuitHin
iMrOD in fsTDui of the defeudant, I can't help
«4lb.MUNt tbe yaungtrf mj kinls, said !■«
believed his father visited at Dnnuiaio^ but
■ hat he did nolseelady Altham ullea at bis fa-
ther's baiise. He seems to bate too much io-
timncy in IbM family from bis ovin account ;
he tells you, ihat IdrcTAltbam mcationed to him
bis iottiiiliun of turning away bis lady, yet till
that time bis lordship never tpoke lo him ot'bis
family aflairs. Thisreally appears very Strange
and improbable; and if on° Ihct is not true, it
tanst discredit all the resi of his testimony.
My lords, be is conlradicled by Juan Lofiaa,
who swears, (hat be had lord Althnra's cap on
tliBt morning of the separation ; he said, (bat
be had his bat and wig un t but when tb^
were bolb on tbe table here togetlier, be ci>ukl
not recollect he had a cap ou, or if he changed
bis iiat and wig for a cap. ll is somewbsl
strange that Sir. Palliser should forget tbe most
material pnssageof his life ; for from tbeciiv.
oumslanca of ihat affair, and the ti'ealnient he
met wilh, he must remember the particulars of
lhat atfsir lo his last day. Th« very parlieular
breakfast he bad, Joan La0an retnembered
when ahe was called upoo; and be acknow-
ledged, as she said, that it was some mulled
wiue i BO that in tbe
please lo cods
sentmeot has on the minds of a
easily removei!; and sometimes a strong re-
sentmenl against the father is continued to the
sun. How much Mr. Palli«er has been in-
censed against lord Allham, has plainly ap-
Mr. Aamn L«mberl, my lords, gives a very
loose kiud of testimony, and when a cbaractor
was required of colonel LoHus, with reipact lo
Mrs. Ldmbert, your lordships have seen how
cautious be was of encouraging any credit (o
be given to ber oath.
Ab to Airs. Gifiaid, ahe pretends to remem-
ber every thing that happened relative to tbe
assizes ai Wrxibrd, yet ahe forgot ber wster,
who went in cooipsoy with her and lady Al-
lham thilher, as is evident from Mrs. Ueatb's
testimony. And as lo the circumstance of the
assizes, Ibe lestimony of Mr. Colclongb, Mr.
Turner, and Mr. Ui^ison, for the plainliff,
are diaoielrically opposite to the testimony of
Mrs. Gifiatd, Hotph, and Heath for Ihe de-
fendant.
Rolpb, my lords, 1 inusi remark, was never
at lord Allbam's Indgian; and Mrs, Heath
adds a new person to the company : I (oust
submit to the gentlemen of the jury, whether
the plaintiff's or the defendant's witneascs are
luust consistent, and wiiiuh of them give tbe
niost probable evidenoe.
Tbe next Ihing I aball trouble your lordabipa
with, is 0> make some remarks on some dccla>
rations, msde by Ihe late lord Allbam, thai lie
bad no legilimate issue ; whereon the (cnllc*
men of tbe other side strongly relied.
Colonel Harman was produced as a witness
for the dcl'Eudanl to this purpose ; but truly be
could nut tell wbetbcr Ihe convcrsatiun he bad
willi lord AUhaat wa» before ut alXw Uwdotl*
1S99] 17 GEORGE II. Trial in Ejectment between J. Annedcy, esy. [1400
ofqaeen Anne; therefore he is not certain in
his evidence herein, and could not fix any par-
ll^iriar time.
Father Downes, another of the defendant's
evidence, could not likeirise fix any particular
time in his testimony.
Colonel Wall, my lords, says, that it was in
17S5 lord Altham wished he had a lawful son ;
and Mr. Wall said, that it was the interest of
my lord to have a son, on the opinion of the
wills and codicils ; whereas the point of law is
quite contrary.
Colonel Becket*s testimony, my lords, is
manifestly inconsistent : he says, he dined with
lord Altham in the summer-house at Mr. Vice's,
and that it was not above a year from the time
hu lontship lodged at Mr. Vice's till he came
to live at Inchicore. Now, my lords, it is evi-
dent in proof, that Mr. Beckett must have mis-
taken himself for several years, for that my lord
lived in Dunmaine, Kiunay, CarrickdufT, in
DaMin, and other places for a p^ood many
years before he went to live at Inchicore.
As to Mr. Medlicott, it is very odd that lord
Altham should make the declaration which he
mentions, That as he had no son of his own,
be did not care if the estate went to the devil.
However this declaration may ue made consis-
tent, with some little variation, by only substi-
totingf the word if' instead of as, which wonid
make it, 'If he had no son of his own,' then it
would be an hypothetical expression, and pro-
bably Mr. Medlicott might have forgot the
identical words in so long a time. These last
witnesses were all that were examined by the
defendant as to the point of the declarations.
Now, my lords, I shall beg leave to mention
what*the witnesses in behalf of the lessor of the
plaintiff swear as to this point Colonel Pigott
says, it was generally reported that lady Al-
tham was broufi^ht to bed of a son about 28
years ago, and ^om his intimacy with that fa-
mily he could not be mistaken.
Alderman Banies, my lords, said, that lord
Altham mentioned to him that lady Altham
had a son about the time of the birth of the
lessor of the plaintiff, and he believes he was
told so by 500 people in Boss. Can it be ima-
gined that his lordship would make such de-
clarations, with a view of imposing a child on
the public in prejudice to his brother, and the
remainder-men of the family, if he had not a
son.** I^andy's child was notoriously known
and admitted to be a bastard, and it was not in
the power of lord Altham to make him bis le-
gitimate son.
But,'my lords, nlderman Barnes's testimony
is eonfirmed by lord Mount Alexander, from
lord Altham's positive declaration, ** By God,
(jruve, I have a child by my wife, that will
make my brother's nose swell." The honour of
this nobfe lord is sufiicient to establish this as
an undeniable truth. It is true, lord Mount
Alexander does not fix a time for this declara-
tran, but the natnre of the thing speaks it, that
it moat be after the birth of the child ; and it
Monot be suppoMd loni Altham woaM be lo
1717.
absurd to declare be bad a child, if lie hid not
a son.
But, my lords^ as these evidenoei on the
part of the plaintiff are positive, and all the de-
fendant's proofs are negative, the mosit favour-
able construction that can he made for then,
is, that they are ignoraot of a fact so notorioas
to the rest of the country.
My lords, that there mav be no part of the
chain of our evidence broken, we baveshewa
what care has been taken of the cfaiM ; we
have proved Joan f^andy to be hia narse, an4
Joan Laffan his dry-nurse. Laffaii was calW
up and narrowly examined three or fimr dif-
ferent times, notwithstanding which, she wm
always found consistent with bemelf, and iH
cirenmstancea of her testioioDj were mini
fully by her. The whole force of the <mM*
ant's witnesses was turned to dcatiojr Ihecki-
racter of this woman, hut their testunoDy vai
general, and there waa no fact proved to de-
stroy her evidence, therefore what they swsr
did not affect her so as to render her a bad wit-
ness. She said she came to DaDmaineia hir-
vest 1715, and lived a year io the family bsfcve
the child was put under her care, which <
harvest 1716, six noonths before the
which was in the beginning of the vear
and that tallies with the time that ane
Sainted to take care of the child, and
Ir. Prime Herjeanl'soi^tion aa lo that
Doininick Farrell, my lords,
the testimony of Liaffan. He ia poaitiva tlM
he saw the child in the honse of Doomainr, ii
the care of his mother, the lady Altham, Wfac
the separation.
My lords, the counsel for the defendant fish-
ing that we had proved the lessor of the plaa-
tiff to be the son of lord Altham by his lidj,
have endeavoured as much as theyconUii
overturn this evidence, by pretendii^ he wm
the son of Joan Landy ; but I hope we hive
satisfied your lordships and the gentleoMa of
the jury, that their testimony, in this respcet,
is very inconsistent. William Kims has bcfo
produced, who swore, that Joan Landy's ckM
was brought home to Dunmaine after the le-
paration. Martin Niefe, and William Knowitt,
swear likewise, that the child was braoght
home after the separation ; but Anthoov
Dwyer contradicts these witnesaes: hesayit
he staid three quartera of a year after the «e-
paratioii, came up to parliament with lord Al-
tham, and never saw a child at Dunmiiae.
Aaron Lambert said, he never aaw a child in
the house ; and when aome of the witaesMi
were asked, was there a child in the house, or
was there not ? Then comea the evaaioa ; if
there was a child in the house, it waa impMd
to the coachman, a circumstance which b^
spoke perjury, because of their endeavoariaf
to ward off that blow; ao that these wiluB—
clashing with the rest, moat throw an impola*
tion on their teatimooy.
Elizabeth Mulk>y, my lorda, aaya, ahtM
applied to, in order to dry-nane .Iosb LaaM
chdd, bat could aot fix a tint; mi mif
MOt] and Richard Earl ofAnglt
niJ, »fa« would drjr-Durw cfailHreo of ten years
old, wliicli U * lliiri); very unnommon.
Anue Caulfield uiiJ, she mw Josd Lsody's
cbilil at nurse, >nil ihal she saw lord Alltiam
atWr the sepsration call to see a boy nt Fur-
Iod^^'b sclioiil i jtt wlien she wai crusN-exa-
inio^ll, nlietliEr il wa« llie Biiae ubild she Sinv
■f ■ehool liiDl the saw at nurse, sbe miiI, sLe
fltulil Dot take (ipoaherBeirtosneai tbatlor tbc
whole wurM. I bdie Iroubled yuur lunlsliips
M mcntioaiui; those wilnesses wbbb the de-
fendant produced to aliew how uncertain they
■rein their evidence, and therefore that there
can br no ile]ieiicli;iice upon them.
Dut, my lords, lei the gentlemen of llie
athor aiOe say, there was or there was not a
ehtbl at the bouM of Uunmaine ; we haie
praired thu lady Allham'^i child was there;
■Md RedraoitilR and Bteen, »bo were examined
tbrthe plaini iff, ti wear Joan Laadj's child was
dead and buritd several y^iars ajro, which eniire-
I* ovtmunio llie prelenee nf the defeDdant, that
Am iMwrof the plsinlilf Is Undv's child.
My lords, il has been proved to yunr lord-
Rbi|t». that lord Allham treated the lessor of the
riBiDlifFas his lawful inn and heir. The lea -
Bmwi^ of Mr, Uiiset, and the conversation be
had »itb lord Althaoi at Kinnav in the cuunly
•f KiMare, prove Ibis beyond all contradic lion ;
Utd H». Anneiley supports his texiimuny, by
lb« acoount she gives ot her and her brollier's
Ainkiog the ohild's health in lord Altbam's
'■mmue, when his lordship lited at Kinnay,
Itavlv sncli conversation would not be intro-
4mm in company of a relation of Ihe family,
JTlhc child was intended lo be imposed on them :
•Im fortfact says, tlie leKtIimicy of the plaiulifT
ira* never doubled of in the couolry ; and as
«ba woa allied to the fumily, her etidence mult
4* of creat weight to overium the evidence of
Mr. Nedlicoti.
■ Tb^ evidence of Mr, Charles Byrne and
Jatn«a Cateaajrh proves to demonstration,
thai Ihe chdd was lonked upon at Csrrickduff
a* tlw leKiiiraale son of lord Altliam; thcre-
t, my lords, how con your lordships or the
Ellemeii of the jury believe Ihe teal|— -
tin Niefe, who said, that the boy
e Ihe tealimooy o
ymeil a basiard, and had loo much or Ihe blood
«f the Landys in him i* Consequently Niefe's
t«t>niany must be rejecled. 80 Ihal, I say,
hy iddiuK all the plaintiff's proofs to^eifaer,
Une cannot he the least colour to doubt the
Intimacy of the plaintiff.
Hv lorda, both Mr. Byrne and Plunketl asy,
(tet tie waa lookal upnn in Proper-lane to be
the legitimate aon ol lord Aitham ; and the
ioHaence Miaa Gregory had over my lord
Cibcv lie lived there) is likewise proved by
•rJ, and it is natural to suppose, ahe sug-
paled things 10 lord Altheia 10 bis disadvan-
~ [e. Air. Pluakttt tells your lordships, fae
rcsded with lord Aitham for him, when
plainta were made a^nst the child by
I Gregory } tharerare it ia easy t« be he-
id, Ihal il was 00 her account b« after-
tf Wane louUy neglected.
MF<i. A.D. 17*3. lliCtS
Aa to the testimony of Mrs. Mullen, who
says, thai the cliild made answer lo her at the
funeral uf the late lord Aitham, that he was
Joan l^ody's KOn, there cannot be the laut
reliance on her credit, because ihe child al-
ways asserted his le{>ilitnacy : and Mr. Haw-
kins king-al- arms refused em oiling the defen-
dant, uu account nf the behaviour of the child,
ajid his crying at the funeral ; and Mr. Bush,
and Mr. Tigb, and Purcell say, he convinced
ihein of bis leKitituacy.
As to Mrs. Heath, ahe comes from a dis-
tant country ; what inducement slie might
have to give evidence againat Mr. Aouesley,
must be only knowo to herself; she might
have imposed oa lady Aitham, as it appears
that it was from her only that lady Aitham re-
oeived iofurmulioD, to negliHit the diilj, aud
sbe may still continue averse lo him.
My liirds, as In what is observed by the gen-
tlemen of the oilier side, lo shew the inipro-
bability of Reily the servant's evidence, from
ttieshort space of time of goiog from George'i
Uuay lo inchicore and coming back to the
Quay, that was an affair that required ezpc>
diiion, he must be supposed to make all the
dispatch be coul^ ; and as to what Reilv said,
that the delinidant was od the Quay wtaeo he
was sent lor the guinea, and afterward* in an
hour and an half found him there ai his relum,
ipugoant to what Byrn says, that
be vpry well presumed that the itereodant
mitrbt be gn the Uuay when he sent R«ily lot
the guinea, in order lo lix a boat lo carry the
boy lo the ship; and after thai, go bock toOr-
iDond market lo Jones's, and return lo the
Quay at the time [teily brought him the
Bui, I believe, the geDllemen of Ihe other
side vtill nol deny, that the transportation is
proved to D demonstration, which shews Ihe
t lolent resentment the defendant conreised
againal Mr, Amiesley, the lessor of the plaioiift',
and the evil mind of Ihe defendant, still impla-
cable, so as even in lay out 3001. lo prosecute
him, in order to lake awa^ bis life, 10 prevent
him from ever etijoying his birth-right, which
the defendant has unjustly possessed : there-
foni I say, to every impsrtiul man, Ibis muit
be the ■irongesl argument of the defendant's
consciousness of ihe lessor of Ihe plaintiff's
unquestionable ri^ht ; and I makenodoubt but
the gentlemen ot the Jury will be uf Ihe same
opinion, and consider Ibis affair without any
regard lo any other person not before the Court
at present, and give a verdict for Mr. Anneilay
the lessor of the plaintiff.
Mr. Walih, of counsel (br the lessor of the
Plaintiff.
My lords, and yon gentlemen of the junr,
il is not to be expected that the lessor of the
Claintiff, from the many disadiantagea he
ibiitirs under, can lay such full pmol* of his
birih before the jury, or fix his btle a* well aa
UOS]
17 GEORGE II. Ttial in Ejectment belwen J. Axnedetf, «;. [14N
if be hid been always in the kingdom ; (»n the
other hand, the defendant has htul fall time to
prepare his witnesses, as he was alarmed by
the account of my client's rctnrning from the
West^ Indies, and intending to claim tlie An*
gleMA estate. Mv lords, as this point lias been
so well discussed by the plaintiff's counsel,
who spoke before me, I shaft not take up much
of your lordships' or the jury's time.
Your lordships will please to consider, that
the defendant, as admmistrator to Arthur late
lord Altham, has got'all the papers in his hands,
which could give farther light into this affair ;
therefore the strongest indalgence is to be
shewn to all tlie e? idence gircn at this distaooe
of time on the part of the lessor of the plaintiff.
The only point in question is, the legitimacy
of the lessor of the plaintiff; which he has
proved by positire eridence, and thereby wiped
off all that ckrad of infamy that the defendant
would endearour to throw on him.
I shall now, my lords, beg leare to make a
few observations on some of the defendant's
evidenee, and on the declarations of the de-
fnidant, which shew plainly his evil disposition
towards the lessor of the plaintiff.
VirsC, I would remark with respect to Mrs.
Heath, because she is the defendant's prhieipal
witOiMB, and if she is orertumed, all the rest
most fall to the ground.
Mrs. Heath agrees to the cause of the mis-
carriujo (which was the brsaking of the sao-
oers) but not to the effect ; she likewise con-
firms M'Cormick's testimony, that Lucas the
midwife was intended to be sent for: she says,
»y lady Altham never kept her room one day ;
which IB contradicted by Mr. Lambert. What
she and Mrs. Giffard say, as to Wexford assizes,
is contradicted by Mr. Colclough.
Colonel Palliser, my lords, owns he was
often laid np with the gout, and often absent
from his house in the Great Island, conse-
quently could not be certain what hapjiened at
Dunmaine.
Mr. Palliser, his son, induces a suspicion of
bearing a resentment in his mind, irom the
marks of infamy he received, which, if it was
in a judicial way, he could not be belieTcd in
an V court of law.
Herd's testimony in relation to Proper-lane,
is outweighed by the evidence of Plunkett and
both the Byrnes ; he tartlicr swears, that lord
Ahham declared he would not for 500/. the
child should know, that Joan Landy was his
mother.
Niefe swears, that when my lord corrected
him, he always told him of bis mother Joan
Landy ; he also swears the child went by the
name' of James Landy. It is somewhat ex-
traontinary, that my lord should upbraid the
boy with his mother Joan Laudv, aikd vet de-
clare, that he would not fur 600/. that liie hoy
■houM know that Joan Landy was his mother.
FurfcNig is very ridicokMU in his testimony,
and Dowoes is discredited by Uyan.
Beckett is a meal oneertaio witoets, m bis
Moooiil obo«l Tiot^ iMi iMteoit,
Colonel Herman is likewise unocrtM.
Mr. Medlicott'a account, my lorii, iinM.
what extraordinary ; for if lord AkUa mk
use of those dedaraiions, he meDtioa(d,alii|
time ago; yet he says, he never rtAedBio
them till the last Curragh races.
Napper, m^ lords, could not know uyikai
of the point in question, becanie betsoti
late lord Anglesea directed him oefcr li|iii
Dunmaine.
In regard, my birds, the ptaistiiTt csml
have observed so fully on our wilsoM} I
shall beg leave tooffer a few tboBghniili
consideration of the jury.
Mr. Higgieon wanted nottbecraef Ikw
of the eclipse, nor of the time of the PntoM
men bemg tried at the amima of WoM Bi
producm his book to put that mamrmd
dispute.
My lords, the teatimony of eefoad IM
of the reputatioo of the ooantry, ibMUM
very great weight, and ooDfinm tbi pniiM
testimony of Scott, of hia being sntiiH^
sa^ from Mra. Piggottooneeraing tiMcUi;
it isuoteommoD to send how-da-yos'iii
bastard son.
Lord Mount Alezaader mentinslbcfi^
cnhur aooount of Udy Altham*8 havinf icklL
The veracity of theae witoeasm is ua^Mii*
able.
Uodgea's testimony is coofinaei kylh
Heath, which must have wewht
Lutwich H not attacked in his chsnolft
On the whole, your lordsliips will fkwil
consider, the testimony of the pUinuTi*
is attended witn auch oonsiilucjs
c
11.:
i-
in
IS:
time and place, that it must outweigh the *»
dering and uncertain evidence of the tiefeitort
witnesses.
Is it reasonable that lord Altham ibMU^
np a bastard son for his legitimate cfailiikv
h&nfr at tlie same time a probability rfli
having lawful issue ?
My lords I must uow beg leave lo tike*
tice of some declarations of the defciM
which plainly point out his malice sod Ntf^
ment towanis tlie lessor of the plaiutiC. J^
Laffan has proved, that the Cbhmmi^
ailer the separation, the defeodantiTais^f^
maine- bouse, and not seeing the child, w^ *
tbe witness, Where is Jemmy, or where is ^
brother's child ? how did his 'mother befai>|^
parting with him? And Laffan answered, IP
lady Altham had requested very esra(iilj|*
I have the child with her : whereupoa thiw
^ fendant made use of an eztraordiDsrjr *>■>
: That he would not have his brodier kerP *!
! of the bree«l, but pack them both lo tbe M
' Mv lords, the late lord Altham's dtfrt^
and drcumstances ar« to be consideRdbTlki
'■ jury, and Miss Gregory's indoenoe sadi^
I sort of a sham marriage (if 1 am rifb^ly*'
' stmcted) may aocoont for his hwdihip'* "*
treatment ot the child, and she migbt Pf*"'
bim imo a noiioo, that tboogb tbe cW ^
the aao of lady Alihann, yet tint he wu irt ***
gotlM by him. Ttee waa a tiithv ^^
and Richard Eari ofAn^eiea.
A. D. I74S.
[MM
1 being tenant for life, miglit give
lid noMD, in order tke more easilv
lont bv hb brother's joinmg with
might DO more easily effected, as
I no relations or friends, but those
mingat his title and bonoor, and
id that if he, who was a bar to their
imbition, was removed, they then
« of making every advantage they
after.
though the plaintiff was young at
(lis transportation, it has appeved
he did all that was in his power to
knoiv that he was the legitimate
of the late lord Altham ; did he not
ither's funeral lament his death in
ioiis manner, and assert bis title ?
Mr. Hawkins, the king at arms,
reby, that he refused enrolling the
kird Altham in the list of |>eers?
I the defendant to shew the strong-
nt, which he did, threatening to
1 as an impostor and a vagabond,
i scandalous pretence of his having
r spoon ; and then, in an unnatural
lanner, he makes an attempt on
I brother, kidnaps him in his tender
lonths after his father's death, and
ivith a most unaccountable indif-
Mr. Ash bis attorney (as Mr. Ash
lis examination) only that the boy
i is pretty remarkable, that the
Q the other side did not think it
ss- examine Mr. Ash as to that par-
hips will please to consider, that
was in a dead palsy before she
?hich impaired her understanding,
continued so till death ; and was
ned to her room. From this un-
ion she mip^ht not know when lord
; and if she did, as she was in a
ss and dependence, she was in no
tssert the right and support the in*
son.
ny lord 4, be glad to throw a veil
Qdant's misconduct in an affair of
I ; but in justice to my client, I
pentioning to your lordships, and
a of the jury, what illegal means
t made use of to cause the lessor
fto be prosecuted with the utmost
to aim at his life in so extraor-
ner. This affair has been opened
Ir. Giffard, who was attorney in
It appears, that the defendant was
ed with the qualms of a troubled
termined to surrender to the lessor
STbis right and title, if he was al-
, a year to live on in France ; to
or tnis scheme of life, he was io-
. French master in the language
'y. This disposition to do justice
long continuance, an unfortunate
ected Mr. Annesley to a prosecu-
ihsppy chance of shooting a man ;
remorse is dissipated, the late kind
intentions vanish, the defendant valoei Mt if it
cost him 10,000/. so he conld have the plaintaff
hanged ; and for that purpose he roakea ne
difficulty to expend 800?. When he is disap-
pointed in this, another expedient maskne
found ; when the plaintiff's life is out of his
reach, his character, his birth is to be im«
peached, and he is to be deemed the spurkras
offspring of a poor kitchen- wench. It is plain
to every man that has heard any thing of^tbis
affair, that nothing but the strongest conviction
of the pUuntiff^s right, could have spirited the
defendant up to such a complication of iniquity.
My lords, it is true, the defendant's counsel
have varnished over their case with a very
glaring shew, with a view of influencing the
gentlemen of the jury ; but they are or that
honour and integrity, that they will weigh the
affair with the justest nicety. And now 1 shaH
conclude with the words in the gospel, which
the defendant has adopted to himself, ** This is
the heir, come let us kill him. that the inhe-
ritance may be ours ;" but thank the Almighty,
the over-mling haml of Providence has pro-
tected the lessor of the plaintiff, and I hope the
jurors will think he is entitled to a verdict.
Here ended the arguments of counsel for
both parties, about ten o'clock on Wednesday
night ; and the Court by the like consent as
usual, adjourned to 12 o'clock next day.
Frirf/fy, Nov, 25.
The Court being met ancording to adjourn •
ment, and the jury having appeared as uaual,
the lord chief baron Bowes summed up the
evidence in the followiug Ctiarge:
L. C. Baron. Gentlemen of the Jury ; We
are now come to the last period of this very
important trial, and after having attended to a
longer evidence than ever was known u{)on a
trial at law, you, gentlemen, by your verdict,
must determine a question of as great conse-
quence both as to property and title, as ever
came before a jury.
I did apprehend when this trial began, that
it would run out to % great length, and there*
fore apprized you or What 1 thought must be
the consequence, that the Court would not be
able minutely to sum up the evidence upon
this, as upon like occasions ; and therefore re-
commenoed it to you to make and enter your
own observations, as the evidence should be
laid before you : but when 1 consider your ex-
emplary behaviour during the course of this
long tnal, the attention you have pven, and
the desire you have expressed to do,^lstice ; I
think it incumbent upon the Court, as far as
they can, to he aidinff and assisting to you, in
this your search after truth. To this end I
shall, though very briefly and imperfectly, lay
before you what bath occurred tu me ; wuich I
shall do in this method. I shall endeavonr by
way of narrative, to collect the facts that have
been sworn to on hoth sides ; I sliall next mention
the objectiooK, as far as 1 have taken them^il\al
^r» •■•«» «»«»•■•■«
\
dantllM plftiutiff't tUle it brooffbUoa nogle
qOMlloa, wbetber Um lesfor, Mr. Jaoics Ad-
ncaley, be (be If^timale itsiie of Arlbur late
lord Altbam ? It is admilted on bolb sidet, tbat
tbe plaiutiff and defendant claim I be lands in
question, under tbe will of James earl of An-
gleaea; and tbat by sucb will, tbe limitation to
tbe beirs male of the body of Artliur late lord
Altbam, is prior to the remainder limited lo the
defendant ; and therefore if tbe plaint iff can
f»rof e tbat be is the legitimate issue of Arthur
ate lord Altbam, a ?erdict must be found for
tbe lessor of the plaintiff; but if he fail, then
there is an undoubted title in the defendant,
being tbe person next in remainder uuder tlie
will of James earl of Anglesea ; aud a verdict
must be found for biro.
Gentlemen, tbe questioo beinff a mere matter
of fact, tbe plaintiff's counsel nave proceeded
to lay their eridence before you in the following
manner : they have q^iren evidence to induce
a probability, that Mary the wife of Arthur,
late lord Altbam, might have had a child, and
that, by examining Mrs. Dorothy Briscoe, and
Mrs. Ilenrietta Uole, alias Briscoe, to shew
that there was a reconciliation between tbe lord
and lady Altham, some time in the year 1713 ;
that they came together and cohabited at the
house of their father in Bride-street, from
whence they went to one Mrs. Vice's in Essex-
•treet, and from thence to Dimmaine ; and
there another circumstance arises, which is,
that Mrs. Cole and her mother being invited to
Dunmaine, went thither, and while they were
there, upon an accident^ which has been so
oflen repeated tbat I shall not go into the
particujars of it, lady Altham was frighted.
appear that^i
house, though in i
think, a helper id
stables.
Tlie oezt perio
for tbat, tbe^ hav
nesses ; the one B
family ; the oUia
herself cbaiuber-c
were in tbe room
and as far as lh<
positive witnessea
the circumataooe
livery, that were
spoke of bj Breei
that is, tbe reioicsii
birth of this heir,
ing, which b swoi
mentioned before
Colclough aod Mi
Pigot go<lmotlier»
clergyman that of
this child. The
who was a senra
Anthony ClifT, not
father, nut au invi
tbe being there at
master at the tabi
was made on the o
vant, I think, of ]
subsequent time a
that af^ his rel
England, he was
has sworn, to tlii
compliments tbth<
child did.
Gentlemen, it w
]
mnd Richard Earl ofAngletea,
A. D. 174a.
[1410
Qotel for the defeodant made way use of
The next I ■ball lay aiide, is major
!f«ld, wbote eridence was to the declara-
* lord AJtharo, the day my lady was in
, and the inyitatioD he had to go and tap
roaDiDg- drink, and his excuse for not
, as it was an improper time ; the invi-
be had to go the next day ; that he went,
there, but did not lie there ; tliat the
wu brought down to him, and that he
the nurse half a guinea ; but then he
his in harrest, and therefore no adf an-
las been taken of that examination by the
ff ; the defendant indeed has made use
which I shall take notice of in the ob-
II.
) next evidence, gentlemen, has been to
the dispositions that were made relating
child thus brought into the world ; and,
I, I should liaTe mentioned before, the
loe of Matthew Furlong, who applied for
If his wife employed as nurse to that child ;
gentlemen, the same evidence for the
ff that swore to the christening, the same
ce that were about the house, and pi-e-
the birth, have gone farther, and told you
DC Joan Landy was appointed the nurse
I child ; and they bare all of them given
scoant of Joan Landy, that she was a
unmarried, that was with child, and
^ to be so by lord Altham, that was
away, as some say, upon my lady's
^ down ; as others saj, before my lady
into that country : this person was chose
he nnrse. 8he had a place of residence,
ibbiD that was built for her father, a
r of a mile from the house of Dunmaine ;
, as the witnesses for the plaintiff tell
yas fitted up upon the occasion of re-
l her and this child. Laffan has told
mt a room was added ; others, that the
was white-washed and beautified, but
not of the room ; but all agree that this
had the child there, and that for the con*
cy of visiting this child, a road for the
was made from Dunmaine-honse to this
They tell you that the child remained
>er till Joan Laffan comes into pUy as dry
: And Joan Laffan says, she came into
nily when the child was three or four
m Old, and she has ffxed her coming to
t afWr the king came to the crown ; and
waa put into her care about three months
the separation of lord and lady Altham,
Nitinned in her care so long as it con-
at Dunmaine; and that the child was
from her to Kinnea in the county of
B ; and that it was about three or four
4d at the time it went to Kinnea. They
B traduced as evidence the declarations
and^ lady Altham, in resjiect to lady Al-
tisviDg a child, and in respect to lord
'* Mknowled^ng that child. The
'B DoiDt of time is that of alderman
^^ Bjlkaony, who says, that it was in
*uriaf of the aommer. and by his ac-
M ing aftar the birtn ; he tellt you
the occasion of hia going'to Ross, ami that thera
he met with lord Altham ; that my lord took
him into an upper room, and disclosed hia
mind, by telling him, " Tom, I will tell you
good news, 1 have a son by Moll Sheffield ;"
Uiat he went next day to my lord's house, Imt
that he did not see the cliilif, nor did he hear
either my lord or lady s|)eak of it whilst he was
there ; but at last did say, that he believed the
child's health might be drank at the table. Ilia
next witness that 1 shall mention upon this
head, was Edward Lutwych, and he speaks to
the seeing of a child at Uoss, for whom my
lady Altham had bespoke two pair of shoes,
which he was to make, and when he brought
them home, he inquired for the young lord,
and they told him he was gone back to Dun-
maine; upon which lady Altham broke out
into this exclamation, " It had been better for
me to have been the wife of the poorest trades*
man in Ross than my lord Altham's; for then
I could see my child every day, but now I caa
see him but by stealth." Gentlemen, the wit-<
nesses for the plaintiff that were in the house,
and conversant in the family, tell you, that my
lord did always acknowledfife this child to l>a
his lawful son ; that this child was shewn as
such to the persons that came to the house to
visit, and some tell you, that they often saw
the child in or about the house.
I mentioned, gentlemen, the child's being
removed to Kinnea, in the county of Kildare,
and this was afWr the separation of lady Altham
from my lord. When the child waa brought
to Kinnea, they have gone on by evidence, to
shew you, that there he waa treated as the sou
of my lord by lady Altham. For this, they
have produced Mr. Misset ; who tells yon,
that there was a child that he took to be about
six years old ; that he went to a school ' in th*
neighbourhood, and was considered as the child
of lord Altham ; that it was called the young
lord ; that it was sent to school with a servant,
and that he remembers it particularly by an
open lace upon his hat, which he believes waa
the first and last that had ever been at that
school. Whilst he was at Kinnea, as that wit-
ness says, the child was treated by my lord as
his son ; and Mrs. Annesley, a relation of the
family, who lives in the neighbourhood of Kin-
nea, tells you, that her brother colonel Geoffrjr
Paul, a gentleman well known to most persons
here, used to visit my lord, and my lorcl to visit
him, and that her brother used at table to drink
the boy's health as my lord's son ; and says,
that she was sure, from the knowledge she had
of her brother, that if he had suspected that h«
was the illegitimate son of lord Altbam, ha
would not have done him the honour to have
drank his health ; and that she never heard be
was the illegitimate son, till of late that he has
been caljed so, on account of this present dis-
pute.
The next place the child was carried to waa
Carrickduff, in the county of Carlow ; and
there you have had several witnesses to prove
him the legitimate aoa, vii. Two Gavcna^hs
4X
HU^
ka intaoM to piU Uia fUatUToiioriliaMvi
•DdgifCf eredit to the witPMi(n» wIm l«r nii
lorahip Mccutod moh iatantioo, m Mmts w-
lAtod.
The pkintiff wMt furtber* to thew that the
defifndut ool ooly ocoMJoped this penoo's b«*
luff taken awij, bat upon the plamtlff^ retm
into Eoffbnd, a miilortiiiia bdalHoi^ Un, bf
tiwaeduMital killtDg< a man at8taiii6is tbaik
oppofftanity was laid hold of to praaeeato binit
•ad under that oblonr to take awav bia life s
fcr wbfob pomae one John Gifiara hat ben
ycoduoed. Ha appean to hafe bean an at-
loraey of the Coorl of Coaunon Plena m EvM^
land, and agent for the defendant. Sonedtii*
tfohj waa made whether hie erUence aboaM
be leceifed ; bat the Coort baviag admitted
Um to be oamined, wicb liberty to diadeee
what did not oame to bia knoyrkSign aa agent
ftrtbe defendant; Yon, gantleaMa» wiB not
newider whether the dWniyng Ounreiaation be
irbat IB called bonoaraUe between man and
Man, or whether tiie ill treatment thia pevaon
TCceif ed from the deftadant baa indnoed bim
m appear to giro teetimonym thia oanaa^bot
vbciner what ne baa'awom be troo.
Thia witoeat apeakato the deehiraliona nande
by my lord Angiaaca, at the time an appeal
iraa denendfaig b^ween hhn and oaptain Annei-
ky,bmetbeLordainEariand; apon which
«ccaaien, the defendant aaid, that it waa better
lor bim to throw op bhi titlea, wbieh bedidnot
Talne^ and to give op them and Ibe cetate, upon
torma, to Jamea Annealey the phdntiff, wboae
right they were; that be would go over to
Fraooe, and lire there, where be alioakl be
much easier and happier than be waa at that
time. He tella you, that thii was repeated"
more than once ; that it waa not a sadden re-
act ntion, but the result of deliberate ooitoidera-
tion, accompanied with another act, which was
that of taking a person into bis liouse, to teach
him the Frepcb tongue, to qoalify him to lire
in that kingdom. And the witneaa lella you
lartber, that the reason why this project was
dropt, was the accidental homidde committed
Sthe plaintiff; upon which lord Anglesea
anged his purpose, and reaoWed to nrosecote
bim ; and frequently declared, that be would
gi?e 10,000/. if he could get bim hanged, for
then he should be easy in bis titles and eatato ;
and that this proeecution coat lord Angleaea
WOL As I shall not touch this part of the
evidence again, I must desire you, gentlemen,
to consider, whether the words sworn to be
apoke by lord Anglesea, as to giving op his
estate, may not be accounted for as the rash
expressions of a man distressed in his circum-
stances; but, gentlemen, if vou believe the
other two facts, that is, that lord Altham did
apirit away this youtb, and that he did carry on
this prosecution aicainat him, the question will
then be, what influence they ought to have
upon this cauae ? And how far they ought to
conclude againat the defendant aa to the feet
in qneation. will deserve your consid«ntton.
t^ Ibt jpfauntiffmaynotmiArbytliaiUi^
aota of tbo^afeadMl^Aor'tkn
jnrad by yoor relying ton
tivn ortdanoa. If dw
awny tbnjdaintifl; tlml
pntnd to dW Mhndant
thn daatrayar of •vidoBH
mthnanme light tbnkw
na having daalrayad thn pwpar nawa ;
^punat bim dafeetlv»praor, no te no ba basal
■ " be vtmmL mi
am In bo
ovary tUng pvaaoBad In
if tbo
bia being' tbo lafiAsnto ban iiT lati
thopvoot BaaybatamadaB'lbe ~
yo« may aspaot anliiflnniisa I
M Altham bia bvalhar died milbaat
and tiria on nooaonft'^ Ibnt
ptamtiff moat bo nnppaand to bMO kid, ly if
acfcndant% having an nmny yanw pt ite^
tbo pbdntiffa powortoMaavt Unv^hl. M
yoawillnlao nnridar whathnrtbnna aBbol
not ovidenco to amiBlJf yna, that thn Maiil
in h« own thooghto nad wny nrnoariH
oonaiderad the atayin{g of the bav baN^aatfg
might aomo wny pwjndion bto tiun* Bntiib ,
thor, nainaiatod apon by tbo plnJaamoM^
yoaonghttotakntbia aanBndmimisnmil
part of the defendant, that tbn plMHifnafdl
tawfal oon of lard ANhnna, oSTteMal*
thar ooMidoraiioB. Undiubtodly, ihaMbt
viidenl piaaaitipUon, .boonoan nomm b tm
do^ in thia netaraat bonomnwayw*
ralaUvo to tbo title; bat whether ir«l
was the opinkMi of thetronUo boa^flitlBa
from thia lad, that indoeod bim todsiWial
or a oonsciooaneaa that tbo lad wm tto mfl
lord Altham, must bo left to vonr dutoato
tion; keeping in your mind, that it) iM
violent, is but a preaumption, and that lk»
fendant baa an nndoulited title, natoiiji
proved thattherobeaaonofbiatklcrbdto
now living.
Taking the influence of these wiM i*
with you, I shall now briefly meotioa tie*
tore of thedefenee; which has bees, tol"
all, by many witnesaea to ahew that thi nf*
tation of the country wna againat tbtfa^J
anch a child. Cokmel Loana, who livd aiito
eight miles of Dunmaine, who was apcini*
that rank and distinction in the eooaOy i* ^
likely to bear it, saya, be never bm *^
Col. Palliser, Mr. and Mn. Lambsit,llr:rd;
User, Mrs. Giffard, have aU gone liktaaib
the same point, and aay, that uejr aef^ >^
of a miscarriaire. But their not bssriafdi
report
next phice, they have prodooed the r. ^
who, they aay, were theaervantaof lbs "^
at the time that thia birth must bsv**^
Mrs. Heath, my hidy'a woman, Bdj^^
butler, who waa there during that fStf^Jf
thony Dyer, who waa a gnnuamMi tiiff g
Martin Nior and Oiran Obratogh^
ofAf^esei
A. D. 174S.
[1418
OentlMMD, Mra. Heath, Rolph
are all poeili?e that there was no
lai there could be no child withont
edge; and Mrs. Heath goes so far
bere nerer was so much as a preg-
Bse are positi? e evidence, that stand
>ntradiction to the nlaintifTs wit-
bey hare also proouoed William
d William Elmesto the same point,
lant atDnnmaine: William Knap-
iular tells you, he was employed by
of Anij^iesea to sell the Ross estate,
! to him upon lord Altham's death
e, and that though be made a hun-
I for leases of the Ross estate to the
lerer heard one objection made that
son. They then went into another
lence, which, if true, stands in the
ttive eridenee, because inconsistent
Itham's being delirered of a child at
)osed ; and that was, my lord and
I's going to Wexford at the spring
I the 16th of April, 1715, and re-
(I thence to Dunmaine, and going
DaUin : Mrs. Gifiard's account is
?re being some men to be tried as
men, the curiosity of lady Altham
joarnev to Wexford ; that she ac-
my lady in the chariot ; that my
3eatb, and Rolph, rode ; she savs,
came to Wextbrd, they lodged at
»f one Sweeney ; that they went
md stayed there during the trial,
r. Caesar Colclongh sat by them
lime ; that they stayed a week in
id then >went home ; and, as ap-
examinations of Heath and Rolph,
> Dublin in a rery short time afler,
there all the summer; Heath
litirely, and Rolph that they stayed
went away. Now, gentlemen, if
)uld be established, it would un-
Dt an end to thecontrorersy of this
ise, if lady Altham was at the as-»
cford, which appears to be the 16th
tat she continued there a week, and
nd stayed but two or three weeks
e, and tnence went to Dublin, where
e remainder of the summer ; and
the time when she was supposed to
>lif ered of theplaintiir;yon will con-
can be true. But this ract has been
id in this manner ; first of all, Ker,
vtk to my lord chief jostice Foster,
lat circuit, tells you, that he does
ler to hare seen any ladies there ;
ft positire proof, hut it is a circuro-
r the next is Cnsar Colclough, who
he does not remember to have seen
from the business he was engaged
leman on trial being his relation, he
iere he sat by any woman that day.
also two positive witne&ses pro-
rove lady Altham was not there,
» Turner and Higglnson. Turner
bat he waa at the houae of Dun-
a By bnd went to that asshEcs;
that he saw him get into the ooacb, and that
be saw my lady in the house after my lord waa
gone. Higfginson telle you likewise, that oa
the Tuesday of this assizes, he was at Dnn*
maine, and the occasion that brought him
thither (which makes him certain to the time)
was, to desire lord Altham to send somebody to
Innisoorthy for the S8 pounds arrear of rent,
which his son was to oring there. He tells
you, that he saw my lady, that she was un-
drened, and that he believes she waa with
child, and drank to her safe delivery. And
there is one circumstance further, which yoa
should take with you, that Mrs. Heath says in
her account, the sister of Mrs. GiflEard went
with them ; though Mrs. Giffard said, No one
went with them bnt the persons she named,
but did not name her sister.
The defendant has also, in order to account
for what has been said by the plaintiflfs wit-
nesses, as to the child taken in by lord Altham
after the separation, and who was carried bj
him from place to place, and treated aa bis son,
examined the seyeral witnesses produced by
them, who were aa|uain|ed with tord Altbaoa
and his family, during the time the boy waa
with him, to prove that the boy kept by lor4
Altham was the son of Joan Landy by lord Al*
tham, as waa supposed ; and that be waa al*
ways considered and treated by that lord as hia
bastard. And thus, gentlemen, yoa see bow
the witnesses product in this cause stand, aa t*
the most material circumstances, in direct op*
position to each other ; so that the one or tM
other must speak fahie; which of them bay*
done so, God only knows. You, gentlemen,
most, after taking the whole into your eonsi*
deration, say which, in your opinion, deservaa
credit. I shall now take notice of the objee-
tions to the witnesses on each side.
The objections that have been made to the
plaintiflPs witnesses, as to their nncerUinty with
regard to time and place, and other drcum-
stances to which they were examined, wera
also made to the witnesses for the defendant ;
and if an imputation arises from thence, yoa
will consider whether it be not equal on both
sides. In the next place, an objection is made
to the condition of the evidence tor the plaintifl^
that they are servants of the lowest stations,
and meanest condition. You will consider bow
far that objection ought to lessen, much less
take away the credit of their testimony : ser.
yants about the family, though in the meanest
stations, were likely to know such particular
facts as they have given evidence of. But oa
the other side, you will consider that the fact
in question, is a single fact, which mi^ht be
put in the mouth of any body, and which baa
been affirmed and denied on oath by the re-
spective witnesses. Yoa will, therefore, I
think, find it necessary, with caution, to at-
tend to the objections made te the credit of the
several witnesses that sUnd in opposition to each
other : for insUnce, if the credit of Mrs. Cole
can engage your belief as to the circumstauoe
of the miacarriagei tbealln^ HetiUL baa «a^
i
H19J
17 GE.ORG E II. Trial in FJeclnient between J. Anneslcy^ extj. [142(1
.siioiild senti victuals liefore him, ami ctmt »ti
uii'tfr to a straiifrcr uliat was nut iu U\s po«er \i
yivc, and that iu siicli an 0|iea ii.tiiiner.
sworn true; bf ciusr she has sworn the con-
trary, and that Ut a fart uhich must have U-vn
nhservrd by her. Asritii), ii IMrs. Cole obi:iitis
cre<lit, Mrs. Heath iitustbemisiukeu iu aooiiicr
fact, thout»h i.ut ol'that cons€'quenco, and that
is, the reinorul to iJunmaiiie : xA]rs. Cole sa^s,
ard ^Irs. iSriscoe too, that my hird and My
yVUhnin wt-nt to l<Hii;in)^s iu Kssex-street ;
Mrs. f loath, that they went directly from ca|it.
i^risroe's to DuniiKiine. Now, <;entlemen, as
to Mrs. Cole's and Mrs. I*iiscoe'8 testimony,
thi're is no inijaitalion, other than what arises
from titeir n^e, at the time to which their tes-
timony relates, when the ehlcst of lliem rem Id
not be above IS by her own accoiuit, and she
S|;r:iks to a fact, which Mr. Prime Serjeant
thiolvs was not likely to enf^nufc the attention of
&o young a person, I mean the place to which
they reiuoved ; but you will consider, uhctlier
the removal of my lord and his lady from tlieir
family to another place in Dublin, espcciall\ as
an intimacy was kept up between them, be not
sufficient to answer that objection. As tf> the
circumstance of the miscarria;>[-e, there she is
extremely positive, and probably the curiosity of
g'irls of her age, in these matters, exceeds that of
grown persons. There was an observation made
as to the word Abortion, but I think there can be
no great weight laid uptm that, the term may
have been learnt since. There has been also a
witness proiluc^d to discredit Mrs. llealh,nsto
the very substance of her testimony ; what he
has said must be fresh in your memory, but
3*iiu will remember the seeming art made use
of by him, to shew he was compelh'd to give
his testimony. liosides, his testimony is not
suppoilcd by circnmslanccs, but is auoliicr iu-
b;u!UH' of oalli u<r;unst oalh.
GrMli'iiif^n, tlie nrxt uiincss 1 shall take no-
tice o.', is n-ilph: (I don't speak rrgniarly to
tiiriii, -i:i:i?i.(!in(^ oi:ly to tak(? up th(> most mite-
rial) iic ti u.'i;:ly delivortd liis te:»timony in a
very i'Ii..u' iii.iiiru r ; he :;.ive an uccoont of his
couii:::; U) ;ind li\iug in I he family, and nf his
coutiiiiKuice in it, an«l manner of leavir:^ it ;
and ill; re is owe circuT.str.r.cc that gives cifdit
to i{oI|ih, as he i^ thiMudy oneth:it c\tn he said
to rocii\ec'if(iii (Voin Hie uitnes^^es on li»coi!»«^r
side. Tin' i»Ii:iniiif \s uiturss, John S/ult, h:,s
said, that Ki)!{di \>as butler hcf'ure. and cunti-
nued alWr my lady^s di lively; "liich :igr«'es
with Hwipii's cidiuce, but vaiies iVom all \»ho
have spiike t.> l!ie birtii ; who say, tliat Holph
wusgO[K> ; tiui! Mather ti\ir| thi re at tlie lime
of Do\ Il''s and Murphy's beingiiiere. l)t r.nis
Uedmoiid <loi'S say, there was s«irh a servant
as Ralph, hul that he was gone htfore the drli-
very. IJut ihtii ^ou will ronsider \»h:il fi-ruie
this liidph made on his cross-examination ;
such an absolute uncertainty as to e»ery thing
hut what he was brMunht to* disclose, and his
incss to give tvidence on one side of the
queslu)n, uect-ssaiily induce suspicion ; and
you will consider his*altem|»t to throw a riflec-
tion on the plaintiff, as if those concerned for
«•"" **^"'«J have tam|ieretl with Kolph : but the
■ '*'»•¥ carries an improbability iu it, that a mao
[I1<TC Mr. Baron Mounteney s^mke to tL
I Lord Chief Baron.]
I Gentlemen, my brother Mounteney men
I tiou.>< one thing, which 1 am mi'*tjken m. it li
is right; he say«, tliat when Mi*. M'Kerclu
made the olll-r of a lieutenancy to U«lpli, b
own company were only preseut ; i ilo a|inrc
bend there was not only the com pan} <
M'Kercher, but the company that wjs uti
Uolpli. CieiitlcmLii, if 1 mistake the cvi'leiu
on either side, intpute it to my uicii^ory, U*r
have no intention to inisrepn:sent, and' klioul
be extremely glad if any body would »et m
right: when you come to look upon }ou
uotis, you will see how this fact staniis.* lia
there is one thing 1 would ol)>eiwe avt-jtiN
testimony oi Uolpli, and that is, that Mm. G.I*
fard and he differ : Kulj*h has saui, tiiut tiif
uew roatl leading from the house of i)ii:)u:«a3e
to the cabhin, was iiiaile for tiie beiietil ot '^-n^f
to 3Irs. Gitt'ird's and colonel Palliser's. 4o4
that Mrs. Giflanl always weut that way : Mn,
Giffard says, that she oevi-r weui that uav.ka
always by tJse bridge, These are slciiior*
curiistancos ; but however, where uiioMtf
staud iu such direct opposition to eacb bikr,
they deserve some attention.
Anthony Dyer, gentlemen, is anolke^mlI^
rial evidence for the defendant. I>ut vou tilt
■
consider how far his credit is afftcird i*\ viut
1 am going to mention. The u:tnf>us «i
both sides ha>e saiti, that af\er the >eiiaruiii;fl tit
lord a:id lady Alt!:am, the cliild, be K lu'^^-
maio or illegitimate, came into ilic li'in**- 1*'
Diciniaine. William Klines fi\« s it i>' ti :«
weeks after, and another to a munili ; t-ui iii>»
man says, that he was there at the s('iui^-(-v(<
and three quarters of a year after ; ami s*(.:y..
tliere was no chdd in the iiou>e (iuii:i^'>»^
lime.' As to the positive evideiioe •■» "'
p-irt of the plaint.if, Doyle vnd Murjiliv.l''
ohsei'vations ou tlieiu as to their cet:i:i ; >■"*'
llu! s"i»ice, have been made, auil ai« '**
iie.i.tly strong. Murphy did say. tliai I' >*
cdiuo voeie first ; she afterwar.is i'l"»'V*
< d, and said, she came there bel'u;c U'}'<^
\<iii will coiibider also the mai.iu-r in ^^ '*^
iii«y iii\e their e\id.'u«e. And iii rt,-" • \
All! i'.illiscr, .\Iis. Laiiihert, aiid iii'» I"'-'
thai spoke It) the pregnancy on ilie |»-iii ^' '"^
detendant, they h;;vc gone so far, liiit''}"*
iH'heve tiiem, there could not have btrua;*'**
cairiagc. 'J here is oi\c iliinj^ i furu'"t '•" ""**
tion, to strcr.glheii the ivitlence ol M:>-^' *'
* It has been said that chief justiif 1*"**
never to«»k notes of the evidence ;;i*«» ^f^f
trials btfoie hiui. From very mduy bailsi>ll^'*
Work it appears that formerly juilgt* miiiltw'
minute dow n the evidence. Among otlierii ff^
vol. 8, p. 712 ; vol. 11, p.l37 ; \ol. l-2,pp.4'**'
740; vol. l."», p. 1^6; and Layer's ohjec.M**
C. J. Pratt's suinmiiig iijs vol. 16, p. mJ^'
«5
and Richard Earl ofAnglesea*
A. D. 1749^
[14«
it of Mrs. Heftth, which is, that
that Sutton the suri^eon was
>ss, ami stayed at Duninaine
)w when you come to compare
s being sent for, and the mis*
•'ill consider, whether it does not
ir with the time when Mrs. Cole
It at' the Ibiscarriage ; and yet
^s, he never did attend my lady.
! general obserFation to lie made
ence ; and, that is, that there is
an inclination to go on to serve
in botii sides, and that they
lidues<t which gives a credit to
ay not this on either side, but
er whether it is not an observa-
liroiiirh the whole. I shall not
li respect to the surgeon. The
1 arises from the improbability
.>stimuiiy. As to Christopher
as one of the servants attending
christening, supposing what he
credited, you will consider how
listaken in the description of the
ou will permit me to observe,
;reat di^rerence between not re-
uistanccs, and a witness swear-
it are false ; the not recollecting
ih integrity, the swearing to a
can, nor can you give any ere-
tness ; because you cannot say
q: as to this, and right as to that
lence. With regard to the se-
who say the child, from first to
ly reputeil, but called a bastard,
V 's child ; and that the boy knew
duty to her as his mother ; you
ow consistent that is with what
aud others have said, who would
t)od that my lord would not for
lild should know his mother; and
dered them to set the dogs upon
: near the house; and yet those
!iim at Kinnea and Carrickduff
ord has often cursed him, for
:h of his mother's blood in him.
-rent accounts can be reconciled,
(ler. There is one witness more
i:it 1 must take notice of, and
Mh Ms^lullen; and she ivould
)od, that out of the mouth of the
the fuiirrnl of his father, ujHin
her, uho was his mother, he
y. Geutlemen, you will cum-
lie testimony of Mr. Rushe and
le boy, when be lived with Mr.
i^d that he was my lord's own
me at Mr. Tiu;lu?'s : now, if the
( I'cived the notion of his being
i)t lord Aliham, you will observe
ity there is of his saying to her,
u the son of Joan Landy. 1
I a little farther, and that with
letter, she says, was wrote by
account of lord Altham's death ;
stance be false, that letter muit
ious, and of later date.
I have now mentioned the evidence on both"
sides ; and from what 1 have observed to you,
it does appear that here is such a flashing of
witnesses, such contrary evidence, that though
some circumstances might be reconciled, yet
others will remain irreconcilable ; and there-
fore I must, and I think, you gentlemen will
be obliged to consider the circumstances that
will throw a probability or improbability upon
the testimony you have heard. The strong
circumstances which induce probability in fa-
vour of the plaintiff are those 1 have mentioned,
of spiriting him away, and afterwards attempt-
in?i by an unjust prosecution to take away hii
life ; to which 1 have before spoke at lfirge,and
need not repeat. On the part of the defendant,
the circumstances are of a different kind ; and
those are such as relate to this family, from the
beginning of the transaction to the end, and
arise from the quality and circumstances of the
persons, which, as has been urged, must ba?*^
rendered a fact of this kind too notorious ever
to have been doubted, especially in this king*
dom : that it must have been known to the re-
lations of this family in England, whose estate
and honours were to be enjoyed by that son ;
that ray lord Aliham himself ought to have
made it public ; and that it was the interest of
lady Altbam that thedukeof Buckingham* her
father, should know that she was with child.
Again, you will consider the improbability
arising from the place where he was born ; at
Duumaine, in a remote part of the country, at-
tended by a country midwife and the surgeon
you have seen. Ladies, say they, of her rank
would not submit to it, and are usually placed,
on such occasions, iiliere they can have the
best assistance ; and the consequence of a
child to this family particularly required it. In
the next place, you will consider, whether
there be Hot a fartficr improbability arising from
the nurse ; that a poor body should be eiuploy-
ed is no wonder, but that an infamous poor
body, rendered infamous, as was supposed^ by
my lord, and in that very place, should lie
taken by my lady to nurse her legitinmte cbild^
is scarce to be accounted for. There is nothing
said to reconcile this, but the testimony given
byLaffan; and she tells you, that this Mas a
secret not disclosed to my lady, till after the se-
paration : indeed, if you believe this, the im-
probability will decrease ; but you will find it
difficult to suppose my lady the only person in
the family to whom this was a secret. The
place where the chilil was nursed has been alve
urged ; but the difficulty is not that a nobie-
mau's child was nursed at a poor man's house,
but whether that house was fit to receive a
child intended to be prr:&crved ; and therefore
the probability or hnprobability in this instance,
will tlepend upon the cicdit you sIihII give to
the diflerent aceoimts of the cabbm inhere this
nurse livrd. It has been further said, that the
sponsors nt the christening of this child, ouglit
to have bren of high rank, and from anionic the
relations of this noble family. Again thisrhild,
after the separation, wasrrtiiiio^'ed from place te
1483] irGEORGE IL Trial in Ejectment between J. Annetley, e^q.
place, and we have not heard that lady Altham,
either hy herself or friends, took any care or
Botice of him, except the single instance at
Boaa. Was it not lady Ahham's interest to
ba?e acquainted the duke t>f Buckingham that
the had a son hy her lord ; that he had sent
him away, and put this child into the care of
his whore ? And was it not probable if this no-
tice bad been given, that care would ha?e been
teken of this child by some of the family ? The
little care taken of his education by my lord,
has also been urged. In answer to which you
have been reminded of the character and cir-
cumstances of lord Altham. Again, my lord's
parting with this child, or rather exposing him,
ID the manner you have heard, cannot, as it is
•aid, he accounted for, supposing him to be the
real son of lord Altham : out this is also at-
tempted to be answered, by the influence of
Miss Gregory, and her representing him as a
bastard, in respect to my lord, though bom in
wedlock: but, say the counsel for the de-
fendant, aupposmg the piKintiff to be, what
they have endeavoured to prove, a bastard, the
whole may be reconcileil. But if the inhu-
manity of exposing this child raises the ob-
jection, you, gentlemen, will consider, whether
a person capable of treating his own bastard in
that manner, nmy not he supposed capable of
beinff worked up, by a bad woman, to turn his
legitimate child out of doors. The inhumanity
seems equal in both cases, as both are entitled
to the care and protection of the father. 1 had
almost given the preference to the natural child,
as the legitimate does nut stand in equal want
of it ; the mother, the family may take care of
liim, but the other is a cast-off. But, gentle-
men, though this objection may be removed,
with respect to the father, it makes the ohjec-
tton very strong when applied to the mother ;
the sufferings of the child in this manner, were
what one would expect should havecxeited and
called for the mother's peculiar care : that she
ivas not ignorant of it, you will ((ather from
the testimony of Catherine O'Neile ; and ynu
will consider the manner in which the mother
is supposed to treat that child : *< I should be
glad to see my son, but I know it would cost
the servant that brought him his bread." It
must be a weak affection that could, for that
reason, be prevailed on not to see the child.
This lady lived two years after the death of her
husband, and we do not find any evidence of
lier care for this son ; which has been urged
also to shew, that he was not her son. Ag^aiu,
it was her interest to take notice of this child ;
it has been mentioned, and not denieil, that
there was an estate of 1,200/. a 3 car that went
away on the death of lord Altham, and would
have gojie to this son, if legitimate. It was in-
sisted upon, that lady Altham mi^ht have ap-
plied for the guardianship of her son, and have
oad a good allowance made by the lord chan-
cellor, for the discharge of that trust, which she
ivanted. 1 must also oliserve the additional
weight they gave to this objection, from the
testimoDy that Welsh gave, of her declaring
that her heart would break, were it bo
had a promising young son, who wc
support to her in ber old age. Aldcnr
at whose house she resided 14 monti
of integrity and truth, whose credit <
controverted, says, he nerer beard be
her having a son, though the intimat
ing at one table for fhat lime, must
have afforded frequent opportuuitiesoi
And whether a womau, under the ai
a separation, and her unhappy circu
could have concealed audi a fact,
your attention.
There was another matter urged,
probability, from the testimony <
Wall. I shall state to you bow that fi
Colonel Wall said, he had takeu an c
lord Altham, as to the power be hat
Anglesea estate: that, according to
nion, lord Altliam was tenant in tail, ]
have barred his issue, and by that mi
bad it in his power to raise more by 1
his reversionary interest, snpposuig
only tenant for life, expectant on tlu
the then earl. But the same witness
that he would not, upon the credit of
nion, carry the title to market, and
withstanding this opinion, he was vi
with his brother, the now defendan
fusing to join with him in selling th
sions. 80 that lord Altham^s reversi
terest, being certain, and his other c
on an undecided question in law ;
consider, whether, upon these views
more likely to have made public, or '
his having a son.
Having now gone through with wl
posed to say upon the eviilenre. 1 sha
gtuieral take notice, tiiat it will he ])
you, gentlemen, while yoii are consid
case, to take with you the characte
persons actors in it ;'and thence to jii'
was, or was not to he expecteil tro
Again, if there are, as 1 suppose thiT
some of the plaintifTs wiiness(*s to w Ijoi;
not give credit, you v. ill consider, *v|j
■piuintifi'in justice ouulitto be nnW'tnl
you will consider hiiu as reduceil, hs
tenduit:, to the necessity of makinsr use
evidence as oiUred ; and in surb (
witnesses may have obtruded themsi
art may have been used to put thei
way ; so that unless it appeared that t
titf made use of them, knowing them ti
they oui'Ut not to he placed to his
You will also consider, that though }
ouly the diriendant before you, yet the
der-men, w ho do not derive under the d«
are to he affected hy your venlict, ao'
not to be postponed, unless you are
that the plaintiff is the legitimate ioo
Altham: therefore you must coDsider,
the proofs, the probability and tbe
things together) whether the pUintifl
lawful son or not P If he be, yuu mMl
the plaintiff ; if not, for the detendant
Gentlcmeui I forgot la neutioa lht<
«ffNf lUehmrd EdrfofAn^sea.
A. D. mi.
t\m
4 Moaol-Alextndcr, and of Mr. Med-
QoertiNig Iwtl Altham't dcclaratioiis,
having a too. Lurd Moont-Alezao-
^oa of an ezfireoiiioo of lord Altham's
r. Crow, an eirpnsBtion not very easy
lentood : ** My wife has got a son,
il make that rake my brother's nose
Fbich has been applied to the son now
n : yon will consiuer, whether it con-
ioesaarilv to that, or whether lord Al-
ight not bare, in his imagination, some
ild be^ on the body -of my lady,
s an intimation of a son by one Se-
10 might be then living ; how far this
^as in my lord's mind, is hard to soy ;
I was not in bis thoughts, tlie expres-
Iraordinary : '< My wife has got a
liis might be said of such a son ; but
x>nsider whether it was a manner of
11 for a son of bis own, born in his
e. As to Mr. Medlioott, the words
bim were, that my lord should say,
no child, nor know not that 1 ever
> not care if ftt devil had the estate."
d looked upon the son by his lady to
1 begot by another man, consider, if
import more than this : J have ^no
« that I ooppose to be my own, I do
rthe devil had the estate,
kinff each set of words as contended
h sHie, all that can be said is, that my
t different times varied4ii8 manner of
[>n this sotgect ; whether you can find
otives inducing him so to do, or can
conclusion thmfrom, must be left to
ideration. I shall think myself happy,
Dg collected by me can assist you m
ery of troth.
iron Mfmnteney. tsentlemen of the
lord chief baron hath summed up this
D so full, so judicious, and so masteriy
, that it would be a very improper
le to attempt to go again with you
ridcnce at large.
therefore conliDe myself to some of
capital parts of the case: and (a1-
am extremely sensible in how inac-
I disjointed a 'manner I shall lay my
before you, yet) with the hope of
'ut even the smallest spark of light,
y help to guide 3^00 through this dark
halt endeavour to recollect a few re«
those parts of the evidence which
un<lerstanding in tho luost forcible
enU«>meo, I shall take np the case
i evidence for the plaintiff*, and the
na of the defendant's counsel, closed ;
i kidnapping of the lessor of the plain-
le proserntion for murder carried on
m by the defendant.
:or of these two facts I shall consider
i proved by John Giffard, tho atlor- 1
ived ti) carrv it on ; and in the course
lence, gentlemen, several things oc-
1 tboogh not relative to that prusecu-
tioD, are yet eitrenwlly material fbr your mih
sideration.
In the first place, gentlemen, he relates to
von a conversation between the defendant and
himself so long ago as the month of Biarch 1T41»
and the sccasion »|»on which that conversatimi
happened. He tells you, that at that time, il
was the common topic of diso^iurse, that Mr.
Anneslcy was returned from the West-Indiei
to assert his right ; and that the defendant my
lord Anglesea was at that time embarrassed
with a variety of law suits ; that my lord ex*
pressed great uneasiness upon both acconntp,
and thereupon told bim, that *^ ha should be
very glad to send to Mr. Aonesley ; and if he
would aHuw him 3 or 3,000/. a-year, he would
surrender np to him his titles aiid estates, and
go live in France; fbr he should be mudh
happier than to be so tormented, and had rft-
ther his brother's son should have it than any
body else ; for if Jemmy had the estate, ha
should live easy in France, fbr it was his right*
and he would surrender it to him ; that be (Al
not value the title, be would go live in France v
and that he might live the easier there, woukf
send for a French master to converse with him
in that kinguagc."
The counsel for the defendant, gentlemeoi
with great art and ingenuity endeavoor to
avoid the force of this evidence : and in the
first place, they repnesent this declaration of
my lord with regard to a compromise and his
going to France, as an hasty, passionate ex-
pression, fl<»wing from his uneasiness of mind,
on account of the ill situation of his affairs, ami
his resentment against the Annesleys.
But« gentlemen, upon Giffard's' evidencOi
this could not pos$tl>ly lie the case ; for he tells
jroo, it was my lord's resolution, that he con-
tinued in that resolution from the time of the
firat conventation, which was before the 10th of
March 1741, to May 1743, that in pursuance
of that resolution, he actually did (as be had
declared he would) send for a person, one Ste*
phen Hayes, and had him in the house, to
converse with him in French ; and that he, the
witness, was present forty tiroes.
The nej(t thing, gentlemen, suggested by
the defendant's counsel was, that my lord An-
glcsea (in his then uneasy situation, and so
angry with the ^i^uesleys as Giffard said he
was) miglit possibly be induce«l to wish for
such an accommodation as was mentioned with
the lessor of the plaintiff, nOt through a con-'
scionsni*i» of his being the legitimate son of
the late lord Altham, bnt with a view of gra-
tifying his resentment by disnppointiog the An-
nesleys, and at the same time of promoting
his own interest by securing to himself a larger
share of the estate than would otherwise re-
main to him.
Bitt, gentlemeuv when you consider the fol-
lowing part of GiiRml's evidence, you wilt
find, that neither cnn this interpretation hold ;
because, if this had been the scheme, my lord
must certainly have perMsvc'r«-d in it. Wliereas,
upon the aabappy accident of Mr. Anoesley't
4y
hklj
HM^ ITOEOKOB U. TriaiM
Ufaft « wu, tUa wgpMsd mhtma h tbu.
dMeCMduoUwr fauwh norabeiMdaU, m
qi4M UU jrou, Ardw dafondttt, ud ^-
' caTthiMMr) blBMduilalj
k vu, to cany m > pnawa-
iiMMlty tat tto fiwt, aaJ if
itogMUnhwfvd.
lar now, gurtiBwi, ft* ataweicoii
thit pmMnrtiMi Md tb« arcm.
:'^b»lnt.ar1hyN ibe <nrM wUdi te
MMte ii i« dw IpdiWi—ttt bU to be ODia>
GliM toga dmnto.iWMi to coSiet «ri-
im^t —J to wwy oa Uw prwaBilwB. OndM
4tortb. ilif oanoH's bqaat flndc b wilfiil
nj lord gtH dMn to Hantliw M obnI Umi
iBMtetaiMnlwwilHi^wMtoB; wai im-
dwM to k«K Ibu Iw did M» can If ftflOM UiD
^OOOH if be MuM gtt Ur. AmnIc7 ha^ad.
< Qaa auM! an tbaae thingi nid aad draa
lUU)eddbii4ant* Djmm what granndawa* it
tfatiba noUalord tiiwogctoadt infuaaad
is oMer to Braid the force of it, Uii eonn^ h
tba defendant hate ■tronglj' JuiMd opwin
otnactiona to bis credit.
Tlie first it, that Daderttindin|;,uUt*M
bedi)j,that ray loril Aoglereiby hiiMiii-
tion at to the 10,000/. meant, ibai b( iHaM
M destroy Hlr. Anaesley it' he cotiM, ind ikl
be»oukI expend tliBlmiio id mnuUbui
Uas bangei), be ilid not decline li«lgg hnhr
■■gageil, but still eoDiinued to anj n ik
pWBecullon.
Afid iadeed, -^Dtleraen, it <1d« lo mt nn
wUh it an impulalion uiidd tiiffartl.Uutbid
not immedifltely fling' u|> any luanraJgltiK
oraay oilier busiiieisol luy lunl't, tol |«M
thia iledaratioD to all maitkiud. S^Kf^
■IV, joii will conaicler, dh the olbn W,
«bu Gift^rd liatli laiJ in excusp uf binaK
HalelNfou, ■• ir there vasanydiny Mt,
ba bail no hand in it." Iledialiiiguubabl»
apaathbocoaaioDF lltat be aboNwd » ai
jfHHiaBnatplaain bMrtbiaMweotmiF T
lie Mtoaltj esueadad aoen laige aoma „
tonaay aa Oiliua anrcaalT trie van be did (I
lUnkBalaaathaBaooi:} Md dt^rad bimadf
nad; lo attend aiodi hmr, la eanyioa oa
dtfapnaacBliaDr WaablSr the aakaarjoa-
ticar If M, why all t^oae fTMaadaoa, that
oaattitai^c whuk y«a wan tdd af, that my
lard n^ght iwt appear to ba cooeetaad in it T
If set for tba nke af joatiea, tbcn, geethmen,
yea are to oonaider t^on wbu Mbcr priodpta
aod BMliTca ihia cslnordiiMry oondtict cao be
iceoanled for. Atid ihi* will be ibe lea* diffi-
cult for yOB lo do, nhea you shall compare
Ihate facta and circumataoce* wilh the rrssoo
ffirea by my lord for that retDarkable declara-
un of Ilia aa to Ibe 10,00OJ. which Giflard
awaaTa poaitiiely my lord racntiooed to bim,
TiE. He did not care if ii coat bim 10,000/. if
lie could get bim hanged ; " rorthenherbonld
be eaay in hia titlea and eatalM."
Time i« aBotber part of Gifiard's eiiileDCe,
trbiefa, aa it alrikea me ttrangly, 1 ahall iimd-
tioa for your conaideratioii ; and that i*, that
ipy lord taU him (ASv timet, 1 think he aaiJ,
bettreen the 7tb of December 1T4I, and the
I4tb of July 1743, which wki the day of Ibe
trial} that Ifaia pretender, as he called him,
waa tranaported IbriteallnEaiilref tpnon.
You nJI coittider, geDUemen, what wdgbt
Ihii drcumalance may faaie when coupled
with Ibe complainU made againit him by Mba
Gregory oTuiierbg, with what the witneaaea,
wbo proTc the aarend attempt! upon Ibe boy,
aitd at laat the actual traatptirtatioD of bim,
Jiave teU yoa of my lord'a repeatedly calling
bim a tfaining ana of ft wbore ; and with the
partiie^ dnna whkh aaeof lba»awaan my '
[
baJ nurpote and the cirryitii <a t
■ecutioo; andltelEllayou, "iwdi
COrODer'a inquest baring luundtbe MrW
mnnler, he ihni^ht ibat a iiilficieat I
ftrhim to proceed."
■Rie other objection to hit eitdilii.i>
betag an allorney relained by tord inglwa
cany OB ibit proieculion (in any tuiitmoi
Hr. Anncsley and my Iwd, he men f
tltaly he never vrM, nor erer MpfOtJot'
retained), he comes here roluotirilj niM*
the secrets oC kis client.
Now, gentlemen, as lo the proseMPM,^
will ubterve, tliai the on^nal ditMttfjita;
lord's beinif concenieil in it was not tt\ti>iitl
made by the witnest ; fnr be tells yoo, lUb
firabi} himself under the necetehyolMi^^
lord for a large sum of money, which Hao"
due 10 him iipou his bill <rl CMt*;U(liU
upOD ilia ao doin^, my lord filed t kU i^
him in the Court of Esicbequer in Eii|I>m>
bit aniwer an J schedule to whicb k*
obliged lo set forth Ibe particular ilriud I
hill uf coEts ; that by ihta meant (li ^ '.
poaethl Mr. Wac Kercher got knowWr*
It, and thereupon applied to him loji'cw
of it should be admitted or oot, thMi^
trouble you with a rery few wordi wlj ■!*
Genilemen, Icanby nomeaii*aUMil>|^
any ulijection to the credit of lb* wiUtA*:
he rolunlarily ditcloscth tlmt which thr ^^
bath tioaniuiously deiermined lie «h '^
peBabte to disclose. And I must n; iH^
Iber, that, in my ipprclieniian, GiSat^
not' hare ju!iti lied himsett', cillier Itti'''
man, if he bad nol ilisclosed ii i <^\*°^l'
aa it »»s a declaraiJon "
Mt'uiider tb^eeal nf ti
OMflANMewbieb b Mtanaiji
and Richard Earl of AngUiei
A. D. 17+3.
t uil errry olbei viln«n who lialh
iM«d upon Ihii ocosion ; *nd Gud
A tny pirt of tlie eTiilence, di^ ar-
IV'Or any observalioo, shuuld hare mare,
«ieig;lil wilb you thau il will beir.
au beliete (he ctideiice of GilTard, you
BA consider, that ynu hare an espreaa
vlei^nuut or right in tlie lesaor of the
F from the moulh of the defendant ;
kd«p«*deiiilv of tliii, you haie declata-
Md Acta which xtron^ty iniporl a con-
i«N of that right An(I Uilly, you
iUiiler what alreaglh Uiia etiilence of
I adda (if any alreoglh ia nantiag) to the
at of the kiJoapping in 17^6.
H bet, eeutlemen, slanrls |M)«ilif ely and
iTMcd hv a tnaltitude of •vitiietEes, nei-
MCraditea, nor, ai it was promited hy
ifendant'i ciiuosel, coatradicled. AoA,
t if that fkct was not so clearly proveii,
LtJetMeof Mr. Shclcrost Aibe la, in my
icDaiun, auflicieiit in sileuce the least
idKnitit.
k will then coTiaidcr, gentlenieo, if you
I lliat eridetiee, whether there doei not
tteoCflBriM the most Tioleot preauinptian
iklendaoi'i kuuwleJge of title iu th"
of the plaintiir.
> rrpreteoteiJ lo you hy llie deftnce, Ihi
I notoiioiM to every body caovenani ii
>ble family, that taiJy Allham never bai
HI Ireland : that ihe never niiacatried
le orver waa wiih child. On the oibe
Ibaiit waa etiually uoloriaua, that my
id a ion by Joan Landy ; and lltat the
»f the plaintiff was thai ann. Now, ii"
'aa ihe case, fur heaven'i take, gentle'
That apprehensions could Ihe defendant
y be under frnm a boy, who, if he had
any claim to the title and estate, musi
bly have been detected as a inoii nolo-
mpoator^
if, on the other hand, this boy wai the
lale eon of lord Allham (and whether he
' not, must certainly lie in the know-
)f the defendant) iheo, gentlemen, yon
uider whrlher Ihiii kidnap|>ing and this
jlioo will not be easily and naturally ac-
dfor; and h hither any other adequate
.ban a lioowledgeof his bring so, can,
ly decree of prulMbiliiy, be assigned liir
Iraardiuary, ibis iuiquilous behaviour of
tadanl.
g«Dtlen»en. the couniet fnr the defeo*
mloMyou, ihat the tnuerial fact in
•eialhebirlb ; and unless Ihat is incon-
r proTCi), tlial Ibe plaiatilfcMinut poiaihiy
limaclf of any presumptiona (sn inge-
[tolleinao cliose generally to cull them
on) which ariie in llili caie.
tloDca, I difier eniiidy from them upon
•A. ir tbal, which to be sure ii Ibe
kl tui, were proied to you iocQiiles-
' UilT would than have no uocaaien
IVnomjitiona then ouly
sc, nhvn the fact iu diapute
abe,prutcd iacoutulably.
Gentleinen, as this atvartion balb been aoj
itroDgly iusifled on, and halh had so rai
stress laid upon it, by every une of the Ivar
counsel, let uie iletain you a little to make a
observationa apon Ihe subject of presampiioni J
Preauinpiioua, geulleroen, have at all time~
and in all laws which I have ever heard a
particularly in our own, been allowed to
great weig'ht in donhlful cases. Some i
to high a nature, that the law will not aomti
of any proof to the contrary : and these an
called presumptions ^urii «( dt jure. Again,
there are presumplioni of law; na likewise what
Ibe writer* upon this subject call presumplioD^
of man (such as nre collected occasiona''- ' —
mao'a underatanding from given facts), wiiicDa
though tbey (all tbort of that «lrengtb anQ
cuncluKive force which the olbers have, ars
yet to iianil in the place of fall proof till thft
coutrary is proved.
" V'ioltnta preiumplio is many limes jiltrMr
probalio," are ibe express words of my lor4
Coke j and the case which that gpreat oracle of
tlie law puts upon It, Is Ibis : " A man is ru^
through the body with a sword, in an bouM^
whereof he instantly died A man is teen tot
come out of that house with a bloody sword^
Budneotherman was at that limt in Ibe bouse.'*,
Upon thetecircnmslaoces, gentlemen, a violent
presumption arises, and shall stanil for fulC
proof, unless the contrary can he proved, Ihat
that (nao wtstbe murderer. ,
Now, (^eutleinen, yuu will observe, that Ik,
the case pul (and many others of a like, or,
even inferior kind may be put, in which gremt^
numl>ert uf the king's Huhjects daily auftex,
caiiilally), the jury from circumttaiices inter •
criminal fact commitled by Ihe person accused. ;
A fortiori it should seem reasonable, from ft,
criminal (act proved lo inter the circuiustaocoi .
and motives leading to thai fad. ,,
Mr. Serjeant Uanhall very properly men*,
lioned to you tbe case of the spoliation of a deed*,
111 Ibst case, geutlemen, il is an estsblitbed.
maxim, " ihal ail tbiiii^ are tu be presmucd in
diilavour of tlie ipohatur." And ynu will,
consider, whether a parity of reason will not'
operale strongly in the present case. Mr. ,
^rjeaiit'i reasoning on this head was entirelv,
agreeable to what I remember to hate heara
laid dawn hy oae of ilie greatest men whoetec,
sst in a court of judicature, viz. That circuni*
stances were, in many case*, of greater force^ ,
and more to bedepeiiiJed upon, than the lesli*
Witnesses, geutlemen, may either lie mi*- ,
taken Ihemaelves, or wickedly intend to d^ .
others. God knows, we have seen !•• ,
much of this in ihe present cause on both sidetl ,
ui circumstances, gentlemen, and presump- .
)DJ, naturally and neceiaatily ariaiui; out of '
givbii tact, caouol lie. And gentlemen, il ,
Ue left to your caniidernlion, n hi-lhrr ia ,
[ from Iba .
1431] 17 GEOUUE U. TruU in Ejedment beiwen J. Amttdey, esq. [USi
The next obaervatKHi, gfeuileinni, which ai-
tnrally ariselh Irum the kidnappincr, it, tluit
Ihe lemur of the pUintiif is thereby thrown M-
teen years back io his evidence. If his case
hail come under your consideration, or that of
any other jury, soon after tiie death of the Ihu?
lord Althunfi,' it uuuhl not have been attended
with the difficuUiea it now is, but n)ust have
receirnl a ?ery easy and clear determinatieu.
Mrs 8hiells, wlm is sworn to have broagfiit hiii»
tnte the world, — the clergyman, who is swurn
to have christened him— the persons, who are
tfwoni to have been s|»onsor8 (with many other
material witnesses) were probably aH, or mosl
of them then livingf, and mi|;^lit have home their
ttstimoov. The account which you now hove
•f them 18, tliat they are all dead.
In the next place, gentlemen, you are to con-
sider the dangers to wliieh this gentleman lies
open in asserting his supposed right ; on the
one band, from witnesses officionsly obtruding
themselves, and on the other, from u itnesses
who may have been industriously obtm.de<>
upon him. And ii'you believe that these diffi-
culties have been occasioned by the wicked act
of the defendant, you are then to consider whe-
ther a mticb slighter evidence, than might
otherwise have been required, will not satisfy
you, in a case thus eircumstanoed, of the troth
and justice of his claim.
But, gentlemen, the counsel for the defen-
dant farther tell yon, <*that although you
iHight possibly be induced to think the defen-
dant capable of committing a wicked act, yet
that ought not to influence your judgment as to
the determination of his property."
And, gentlemen, I must sgree that a wicked
act, nay repented wicked acts, in general,
otigfit not to influence your jndgtiient. l-Jut if
the defendant hath committed a most wicktd
act against the person, who then asserted him-
self to be the son of lord and lady Aitharo, and
who is now contesting with him his title and
estate ; if he hath done another yery extraor-
dinary, though legal, act against him", in a clan-
destine manner, and coupled with a declaration
highly criminal, this, in my opinion, may, and
ought to have great weight with you upon this
occasion.
Another thing, gentlemen, insisted upon by
the defendant's counsel was, that if the case he
doubtful, the present possession ought to turn
the scale in favour of the defendant.
Now here I must sigain difler from the
learned gentlemen. Jf indeed ti{)on the whole
evidence the cnse stands doubtful, they say
well ; But if upon the direct positive evidence
the case is balanced, then, gentlemen, the kid-
napping and the prosecution will, in my ap-
prehension, turn the scale in favour of the
plaiotifT. For a violent presumption is to stand
t'lr tralh till the contrary is proved. Now, if
upon the positive testimony on both sides, the
nnnd remaims in eguilibrio, then, gentlemen,
the contrary is not proved, and consequently
the presumption stands.
1 caaiiot help saying, that 1 think it pratty
C
n
w.
V
pi
P
F
1
K
cxtraonliwary in thb ciAe, that s» may ili»
tious siioiihl be raised, and so mneb nnm Mi
upon them, agaiosi yuur beiag isiooMri ii
vour judgment by presuuiptMUis, hy MipiMii^
by pnibahiblies.
Cientlcmeii, their whole dcfenecb boMipw
proliabUiiy and im probability.
They nrbt tell you, yoa aietsi^jcsit^
probabilities, but upon positive prssi of lbi»
terial facta ; and Io thai positive fntS, wtai
given* they tell you, you ought Io gin ■
credit^ for it is«improbahlc.
There was one objection of thiisoitwiidi 1
forgot to meiitioB, and that was ai Is tiie pirf
of the kiduapping ; they tohl yss, gari^
Boen, tliat altlmugb the dcfendaal eosU h
supposed wicked tnough to oonoit mA i
fact, yet it was inconceivaUe thai beiMUh
so weak as to do it at noon-day, that he Ml
carry the hoy through a ptiblic nsrto: wift
by the very stall of Poroelt, whs bi hfai
protected him, (by the bye , geatlewi, jm
will remember that the boy was. cbsifei m
liplony, and carried off by known coMUMft)
and tiie same objection, f | think, VM Mm
Doade to Giflfard's testimony, thai it wanMily
incredible, that any maa liviag shooU ki*
weak as to put himself into the fiowirif My
otiier man, by making such dcetsntiiH *
Giflard swore my lord made to him.
1 must own, .gentlemen, that this dbjatin
does not to my underslaadmg carry wj gtit
weight with it.
Wickedness and weakness ^enenUv f
hand-in-hand together ; and upon the rfgcM^ i
observation of their doing so, m foundn thi
welt known saying,
*^ duos Deus vult perdere prius dcmcDUt.'*
The next partof the case which I shaU ipdk
to, is the evidence of IVIrs. Heath, as it tush
opposed to that of Mrs. Colo ; an«l theevidesti
of liolph, opposed to that of Mrs. Coldeagh,
Turner, and Higcrinson.
It was my desire that Mrs. Cole and Hn.
death mis|;ht be confronted, because I did tkcs,
and do still think, that this case may reeeivi
great li^hr, and may be greatly narrowed fa
your determination, by a careful coosidentiH
of Cole*s evidence, as it stands io direct cot
tradiction to the testimony of Heath, wboail
look upon as a capital witness, and one of Ibi
main pillars of the defence.
In other parts of the case, gentlemen, yii
meet with many variations between the ^
nesses, as to periods of time, and other roiart
circumstanci*9, which will not be of aori
cofiNcquencc in the cause, or tend to impsael
the credit of those witnesses oo tlie oos wk
or the other: — But when once ymi come Isi
fact in which two positive viitoesses Mlj
contradict each other-— a fact, the iriilb •
falshood of which the witnesses on each adi
must with as much certainty and exaciMi
know at the time she gives lier tesliniooy, a
she did at the time that feet is »id tt kif^
happeued^ let it be at «r ao hmg
and Richard Earl ofAn^csM.
('is, la itemninlnlion^ perjund;
mi, it bAcomcs «xe*iHlini{ly ma-
la eoaaklrr wtiielt of two wwK
will K'*" cttiHl ID ; uul yoat
uf iliat {MHiii mjy fo u i^ieal
MaMin^ juu 10 toru a jiit'jfnieiit
rtsrial nrcuinftaiieB wbirh co*
<iueh CuUuil Hrsili diner, ii
r ar sat fnoK away of binl aod
Emit captain Briwoe's (ai wtuwe
Kciliatiaa. was bmugirt abootj la
IngtatVieny in £«vz>itriiet.
I airean poailineljr, lb«l duritig
Dublin, ihejr never ludged one
ntitt' (be house of capUiD Bdii-
l6 (sapported by hmifiicr, Mr».
AliCK Balei, a aerTant in ber
f — md by Callisriiie Mac Cor-
rvatil) aoean a« poiilirely, tbal
Itiir or liie ilay* at ber lather's,
id^iiet in EsBtm-strect (as to iba
I she ii nutposilive, boUbe lakes
^ and tbere caatinued a coiisi-
1 iliink about tvvo muDibs, before
)lin, «nd went lo Dunmnine.
a, yott will reiBPLuber ibal Mn.
« WM a lecond lime prodiiued,
irticaUr reason why abe could
» as to that lact, wbich was,
icUnitini; Ihe rpcouciUation lie-
and lady, her lather siill cou-
about ibe matter ; and was
tnd fircMin^, that they would
^pe, and go to uiher biddings,
Mght it would ha*e a belter air
well together;" which tlie:):-
ird^t by saytui;, that it would
public and notoriuoi to maakind,
*— id Inily were in liiet reconciled.
A. D. 174 J.
ruM
;lil, ttruirk sonie lii^bt iolo tliis
0 Rte explain clearly two otlitr
CM, which I aball mention w
!t, eoneemtnir wliiefa Mra. Cole
h stand in direct o|>pD>tlian, \b
Riacatriiip at Dnitniiine. Mn.
Ktively, that about Iha middle
theawidtnlot'luTil Allhain't
Muccrs, Mrs. Henth came into
er of her mnlber, Mrs. Briscoe,
B iny, nlarnial lier with auenimt
tint; exlreoiely ill, and lie^^ed
iniinedbilelv rise sml ^n in her,
Iber accurdiuK'ty did; that the
■he (the witncva) wui in my
_Bber, where were present her
Butli, abd several of tlie ser-
nother there told her, that
asd shewed her the
mornin?— and she «
«a th« contrary, sweara aa
she did nol, eillier >i|<nn llwtl
[hi, call up yln. BriKOe— that
(h» All
ITM ia aty htdy'a
po^lJTely that mr
lady did not then miscarry, uay, ilmt sbv was
not, either then, or at a^iv mlier tiao, with
child.
Il wnsiiiBisled ooslron;;ly by Uie dcrendant's
comiiel, ibailhiHevidenceol'Coie waiaiiakdcd
with greBI improbability — that it was incredibly
uran^u. tb*t a mellier Bhoulil sbcw «u ahar^a
10 her leonile child ut' eucb lender yeank,
And,inil«ed, KentbiDto, I think tliat fact doei^
prima Jadiy appear to be exiteiaelr udil, and
to carry with it n itron^ air M impiubability.
Ttwre waa another taci, prored iu ibe (err
iHilset «F the oauae, wind) (lhoiJ)(b it kail not
the Hiiine remark made uniin il by Ibe couuael)
■truck ma ia a rery odd li);ht ; and that was,
ibii u]KMi the recunuiluUiou of lind anil ladf
Allhuni, at captuiu Briscoe's, Mrs. Uornthy
Briscoe, the* not alwre ten, aiul her aisler,
Mrs. Cole, not theu ahnvt; twelre yean of «f{e,
were, with the reM of the fnmily, called in In
the renen, to eee my bird and lady in bed
tutfetbcr.
iJul uvnlletnen, you will consider, wlielhiv
the renwin which Itlrs. Cole leUs you lier fiibsr
bad fur pifsaina; lord and Udy Altbum to leaic
his bouse, mid lodi^ elsewhere in Uuhba, via.
that tbetr reooocilialjon mi^bi became mure
Bolorious lo maakind, does not fully eipbda,
and siraQfjIy corroborate the jiroof ol', tboK
two odd, Bud otiierwise anaceouolaUc J'acl*.
Genllemen, you will consider fnrlher,
whetber I'mm theie tbree eircumslaoees con>
necteit and compared tngellier, lliere does not
arise a strong- probability, ibat captain Briscue
{who I ibmk appears to bare been the penuu
em|duyed by ibe duke of BDckinghaiu lo bring;
about ihe reconeiliatiDn) bad soma appreben-
sinns, thalslibnuKh Ibe jYiconciliatioa was et-
fei:led,an<l ullbough.in cunieiguence of il, lady
Altbam should bate issue by my lord — yei,
thai III tiMne future lime, and lor MToe rejsonit
or ntbur, loni Allham (nbase character and
conduct appear jireiiy extraordinary upon the
eriilenea in llin cauiie) might be induced !•
bastardise that issue.
And, ^enttoneii, you will consider fiirllier,
whether such an ap|ireheiis»on in Briscoe, ■« I
have supposed, woulil have been unnatarol or
ill feuoiled, wlten yno hare compared Ibcsa
circumilaiices {which, u 1 have mentioned,
■ccm to render it pmbahle, that he hod suck
an appreheniiun) nitb the eiiilence of I'bU
liter Ilia youu^cr. lie relates to you a very
extraordinnry ciintentalion which passed be-
tween my loni and biin, about Ave days bolbra
the separation, as they were reinrutDtf I'rtim
Bourkitawn to Dunmaine. He tetU ynu, that
my lord colled to him in a likiniliar niiutner,
and said, " Tent, I wiH lell you ■ lecret, ■« I
have nn son by my wife, unr ever expect to
linve auy, and as my lord Anglesea is very
angary with me for kuepiuu this woman — I am
deltrmined to put her away, not to disoblige
my lord An);liwia." The snnie wilnns had
before sworn (msitivcly that he never had — •
that lit Mvw MiOTtptwl t» havv— thai Iw b»
1
\
wiB, I
• VIMfVOollHt
how MiM Oifigurj^ bihsrioar to tbo hty
M^ vpM tbo tHtisHBT of mmOmp wilocoi
HmSmmM: Imoob Herd (wbo^ to Ui
^oT tiM biv|^itraottat by wjT tent k^
Aoi BMV osno to IMMioy 4iffnv toteflyy oo wtff
IjKi Guf Borao both olraiidy oboaffoij Hmo
oB tho fUlwoa of thot jwit of tho oiiolij
woo IMVO MOB pVOdOOOd iMAfO yOlL)
flopo loHi yoQf not wImb b^ lotd fifoo>iB
My lOIB OfllBOt-tbO OBBfO| Bjf If IM QlCBOtyy of
hio tlilovtiM-.-tbol bo omooI toll wboOicr tbo
boy WM rooBy goiky or nor^t tbot be coBfcoood
JriaooifM ood tbtt opoa tbit my lord fwboni
Ibo witoeoi bod never ooce oeeo strifco tbo
child upon ooy oecosioo io tbo oountry) eor-
rectod liim more oer erely tboo eter bo bad seea
ooy cbild corrected in bio life.
Wbcn tbo tritneot was asked by my Lord
Cbief Baron, what thoM things were, witb tbo
tfaierinff of which this boy (who is odroitled on
oil boBos to bo the son or my lord, thoogb bis
legHimooy is dismited) was cbarffcd by this
lady^ and for whicn be was so crnelly corrected
by bis Ibtbor, be tdls yea they woro ** a jodtey-
bolt aod a pair of pigeoM."
TbcMore cireumstances which, I most owb,
otrike my onderstanding strongly : Yoo, geo-
tlomeoi one the jodges, and you will well con-
oider, what weiffiit thojr oarry, when conneeted
witb the rest of the e? idence ; and what light
nay be ooHocted from them to guide year
jnmnenta od this occasion.
• IfiHrgot to Bientkm to yoa one thing, which
I tUnklo rery remarkable, upon Heath's ori-
doneo $ aod that is, that she accompaniM soom
of tho plaintiff's witnesses in all the preparatory
Steps, and separates from them only, wImSd
Ibey come to tbo critical and material fiwts
tbomoolfeo.
8bo roeolloeto distinctly witb M'Gormick,
Vieo'o Mnrant, " Tbai my lord came boBio lato
OBO Bight disordeied witb llqaor'-4bot ho IMdo
1 giMtDOiM witb tbo choir— >tbat ho ^BorroMod
«iib hor-lhai ho JonH^ oat of hod iroM My
OBt of bis boBoe^ ob BOOOootBf
bavioor whicb ho hod boM niky of ib tU fc-
nuly, WM twice oeBt for to DbbmoIbo t
twite refused Io go, bewgpioqBodot
been turned not of tbo faonly ; thot I
for a third time, and my hira*o cfaoriol
for bim, be went, and coBtionod ottM '
lady at Doomoine, 10 tbo best of tho
remembrance, for a fortnight. This
WM produced to order to dtsorodic BioobsbAs
piece of a sui|^n/as bo oallcd himorilX fit-
ducod on the ported the phuotiff; who, way
opinion, suflioootiy discroditod hiwoolf. Yts
will conaider, gentteroen, .whether it dsei oit
go strongly in support of tho tosthoMytf
Mrs. Colo, in oootrodiotioB and dneosdo if
Heotb; with regard lo whoo^ ob obsavoia
wMmade by tbo detodoBt'aooBBool, whicb 1
WM oiceedwgly sarprisod to hoM frsai AiO
side of tho table. They took BOtiM of Ihop
coHar ezcolleocy of oar low* espoeialiy «M
rcjprd to trials by jury, ob which umaaiiMlbs
wimessM aroenmmod «lod ooco; thot fiwo
ooafiooting witoeosM who ' eoatnidiot sisb
other, and careftdlyobotrfing their opaeoioot^
and the moBBor in which they giro ihsii aai
mony, Mmo light is to bo collected ; oodlbo
oonrt aod jjoiy moy IB oooM BMooaro bo CBsM
to form a judgmoBt opoa a doahtfiil oooo.
Tbo obofrTotioBy goatioflOMi loaaaoaltMlf
joit, but what I litdo mpastsd to hofo h«i
from that ^aaMr. For^ gtMioMio, wbta yM
McoMoBtaad Motpoio^i^pahM thowBti^gM»
boharioar oad' oooifaoaa «OBMMNfino m
1
i Richard Earl ofAnglese£,
A.D. 1743.
I, with Ihecatm, sedMr, and tnodnl ■!«•
rar nf Cnlc, yon will cotisiiter ivbcther all
tight whicb eta be Uid upon sd uWrra-
r IliU Mrt iloe« nut lie eolirel; ou the
Hber poial which liiib bna Birooglyi
idveil very properly insisted iip«n by th«
lanl'« CDuniel, ii ihii : ibey a&y it ii ex-
Ij imptobable, if ttiiB pencil neie really
HI of laily Allhaio, tbal n>y lady, who is
d to have li?ed two years Ulet ihe Jetib
■ hiiil, iboulil mike naeiujiiiry aboul him.
t, eentlenien, if you will compare Ibe
tr lord Alibam's death with Ibe lime of
King Ihe boy, you will tiiiil, I ibiok,
rs t« lery liule, if any, weight In this
; lh«
e cumniUDicaled to my lady)
dale Ibe laili of that month ; that letter
tMfomedaytMleaMgoiD^to BDgliDd.Oa
»h of ihe Slarcb followiog, the boy ap-
Irom Ihe Thuliel book to be iadeiitured
wmaa Hendry by the name of J«met
Ijf, and on the 30th of April, .the neit
h) it appeara from SteTcnaon's bonk, that
■edorer the bar of Dublin; aolbattak-
rat M be truth, (wbicb, 1 ibink, i» liable to
J oUcGiioDs of improbability, that M'Mul-
■ttuat letter) there will be*ery little more
If • monlbs between loril AlthRtn'a death,
n tran«portaiion of the Imy.
km Alice italea appears, and gives yuu an
nl of her joking Hitb lady ATlham about
amg wilb child, you are lold by the de-
Bt'i couoael, that ihii is highly ImiinK
; that lady Allbaui was a very haughty
is; Ibaliiiaiucredible aheibould cooda-
M auch familiarity nitli a person so much
ifcmr.
Jl it not appear to you equally iui|irobabla
■t, ibattbiM haughty ludy sbnubl conde-
to reveive visits oiicea wevk, aa BI'Mnl-
tta jou abe dill, from her — the daughter
kte-houae k»>epeTF •
niMt be allow«t (bal my lady'i living with
wut King lor thlrteeii ur Itturleen months,
niug with him about lier family atfuira,
d never meiitiuning to him her sou, doe*
£»> carry with it a great iiii probability
Vint; at that lime a lawful aou.
t amiideriotf that my lord had put her
npon a aunpiciun (eillier teal or pretend-
riier virtue, and had aspersed htr chiirao-
I ddght not be so prudeut, nor perliaua lO
UCi thai she atiould discourse with hiiu,
Y tuber pemou, upon Ihe subject of ohikl-
V-
iwner, allowing thi* lo be improbable —
1 DM be e«|ually improbable, Ihal the care
Ulnatii eating ao nuUonal inlelligriice u
rttll of lord Allham, should be mlruiiieil.
I ibii alderman King, ur any other p
re in Ihi
ultanr
[143!
These, gmtlemen, are ciienmslancri which
in my a li [ire hens ion weigh strongly againat the
ei'cdil ttf Itl'Mullen's ciitlence. Uui iakiD|>
that eiidence to be true, you will eoDiider,
whether the small distance of time belween
lord Ahham's death and the transportation,
does niii grraity lessen Ihe force of this argu>
ment. winch has been so strongly insisted upoa
by the defendant's counsL-l, especially if yoM
add lo it, the circumslancrs both of heallh and
furtuoe, in which lady Altham appears lo bavn
been al this time.
And here, gentlemen, will come in very nw-
lerially for your consideration the evidence of
Mrs. Ueborsh Annesley, a near relation of this
noble family.
She, who bad before luld you that her brotlMT J
frequently visiled my lord at Kinnea — lfai~
whenever he returned from thence, and when
ever my lord visited at their house, i
common practice to drink Ibe health of i
lord's son ; that they all considered thai b
my lord's lawful sod, and the future ei
Anglesea (su that ii is not fact, as you havt
told, (hat none of the relations nf Ihe Ii
ever heard of lady Allham's having a son ;) tl
lady, I say, tells you. that upon the d "'
lord Altham she and her sister made t
CD^uiriea af\er this boy ; that lor Mime li
(hey could learn no iciMiunt of him, and at lirti
they concluded thai he was dead. Now ifil ]
became a general reputation tbat he was ao
then, genilcincn, though lady Altham hbewia
■night have made frequent enquiries attrr ihi*. J
boy (nun conttal upon ihe evidence wlieihlfV
she did ur not, and she loight have made kcvss ■
ral, nut at Ibis day capuble of proof,} and mighvf
rL-ceive an accouni, and give credit to it, that b '
was (lead ; and this might put a stoo u any f
furlher enquiry, cunsistenlly with lady AU. |
Iham's knowledge uf this boy's being her legN
These parts of the case, independent of lb*
other, which have all been fully laid before you '
by my L'lrd Chief Baron, seem to me lo haac |
great weight in them.
You, gentlemen, will consider t
you will lay upon the observatjoiia ' I hav* \
thrown out to you, and what hght may b* coU I
lectedfrom them.
There were several other things, geutlema^
whicli I designed lo hai« meniiooed to yon | I
but the fatigue which wc have all undergon* i
baih been so very great, and the tima t bav* ]
had for rei^ollKiiuu so tcry sburi, that t
tbnushiB are too iiiilch dissipated lo procM
and indeed I have already Ireapuaed too mat
upon your patience ; considering the great al
tcnlion which yuu have all along given, and tt^
careful notes you have taken of the (vid«DCet~l
1 ahull ihbrelore now conclude with that which j
1 at Drat set out with, the knlnappiiig and l'
prowculion. If ihueote beduuhtful, upon tba I
other pnriaof the CTidEiice (whether it hem "
yuu are ihe priiper jud|:ea,) I tniul then I
It to your considvralinn, whelb^T the oid __
uf those wu fatiawnliu.i[y kcu lusy nut te J
liSETI 17 GEOEG£ 11. Trial in EJeOnu^t between J. Afmedey^ etq. [1UI
•nfficiant to determine you what fcrdict to give
upon Uiii eooasioo.
Ifr. Baron Damton, Gentloraen of the jorj,
my Lord Chief Baron and my hroifaer Mouii-
leney have auonned op the evidence, and eb-
•erved upon it b so jiidacioua and clear a man-
fier, aa makes any farther observations from
ne uaneeeantry ; I shall tlierdbre only require
your patience ibr a few minutes, to siiew you
how t would ooasider this case if I was upou
the jury, and my reasons for so doinff. There
ac« such ooatradictions on both sides of the
■nestloo, that it woiiid not be hard to shew,
that several witnesses on each side are not en-
tirely to be credited. Several of the witnesses
on csch side, not only contradict the witnesses
on the other side, but also, in some insrances,
themselves, and therefore, imiepeodentol' other
things proper to be considered, one could not
tell where to settle. If i was upon the jury,
and to determine this question, I should lay
fcefoce me and consider the story as told ou each
side; 1 ahnuld consider how far the story on
one hand, independent of the witnesses, ex-
ceeded the other in point of probability : if on
either hand the story toid appeared extremely
improbable, I should tlien require from tJiat
aiile, the strongest proof imaginable; and that
because prolmbiliiy ou^rht to weififh,,exoept it
be contradict od by tesiiinooy not to be doubted
of: and therefore, if on eitiier side tlie story
aboald be extremely improlmbie, anil probable
on the otiier side, 1 should i(\\e my opinion on
the side of probgliilily. How far any thing of
this kind ap|iears iu this case, will come uuder
your consideration.
This is the lou«^st trial ever known at the
bar, this i« the l&tb day since the trial be^an ;
triaU at bar are usually detemiioed in one da}',
and the policy of the law hath taken care that
no poi-son shuuld speak to the jury after any
evidence given in court; there is no occasion,
I am persuaded, gentlemen, to remind you that
any thing heard out of court is not to \^sem
you, you are to be governed by nothing but the
evidence laid betore 3'ou.
In the first place, the first stage is the time
of the birth. \uu will take into your consi-
deration the number of witnesses and their sta-
tions that swear to that birth, and also the num-
ber and station of the witnesses that swear in
direct contradiction to them ; if you cnnivot de-
termine that question bv comp:i.'ini> Ihrm to;;e-
tlier, you will thcu have r«-coarse to tiie other
part of the testimony, wiiich is, the reputation
of tlie country, and the persons that visiied
constantly at that house ; you will consider the
probability or improhnbiiity tliat a fact of this
kind could have hapjicned, and the {^eopie visit-
ing not know of it. 'V\\\^ could hardly he in a
family of less cdnsequrnce llian rny lord Al-
tham's, but when you confiifior tbisVamily and
the estate that was to fal! to it, yo;i will consi-
der if there could be a birth, and persons visit-
ing the family not knowing of it. There have
been proofs oa the one hand, laid before you of
my UAffH btiBg with cluU, Md on Ibf tte
hand ot her oot being with cbild ; other 4
these parlies may awear false ; liut thm vn
must take into y<riir coosideiatioa, if ib^ ita
swear she had a cliikJ swear truth, wbetfaw il
conM be pomible that that could be kept 1
secret. There was not any interest or nesa
thatitsbottid be kept a cecrec IfHwusil
indubtriously kept secret, how comes it ibstdl
those persons that visited there should wtm
bare heanl of m child ?
To go to positive testimony, Lafian swim
poBtiray the child waa presented to kvoiI
gentlemen and ladies, and often to MrL Laa>
bert. Hra. LAmbert swears positively theddi
never waa shewn to her. Which is to be a^
dited ? There are several circurasfaacn jm
Will take Into your oonaidcfmtioD, concenar
the probability ar im|«robability of tbekinba
this eliild, whetiier the preimmtiont fiir m
lady's lying-in were anitobw to her nskr
whether Donmaine, m amall village^ dimn
firom any amialanoe necseeaary on each m »
casion, waa a proper place ? whether ny Uf
Altham wonkl be easily brought to ly^i a
liie country, eapeciatly of iMr first dUUf
These are considerationa worthy year iMs-
tion. There have been many gentlemei abi
gave evidence to there not having been a cfcW;
they awear not only that tiiey never mv, hi
that they never beard of a chiul. I won't criir
critically into every particfilar fieriod of lim
sworn to by them ; but if in tlwee yean Ibnt
persons were three or fbnr times a-piecc it
Danmaine, and Ihey tn'ear truth, it will be rf
weight in the question whether there wai 1
chiki or not. For admitting colonel VAhtt
and the other ivitnesaes to be there foar tioei
u-year, you are the judges whether it is prah-
hie tliat there was a child there, and unkcovB
to them. The separation is agreed on all beadi
to have been in the year 17 16, and some bile
time after that, the child waa brought boaie it
my lord Altliam*s house. Dyer swean d«
child was not brought to Duunnine ia ba
time; butthe witiies<4es for tlie plaintiff wy.
either from the separation, or soon after; vai
that the child continueil in the house with Vxi
Altbani till about the year 1724. Yon ait t«
observe, that my lord lel\ Dunmaine sbost
summer 1717 ; the se|iaration<wa8 in Febmarv
1716-17, and lord Allham canto up to pariu-
ment, and af^cr that went to Kinnea ; the pv-
liament sat down the 27th of A>igRst \'\'\
theu yfMi will consider what has been svonitv
1)1* my lord's behaviour to this child sll ihil
time. Dming this period of tlnne at Kisais.
Currickduffe, Cross-lane and Frapper-hse.
there are many witnesses on both std«s tbil
^;ive a most contrary testimony to one anothfr;
there are witnesses on both side*!, that I fV-
not say how to difthelieve, there are many ^
them that I cannot dislN>lieve, who swear 10 bi
lieing treated as a legitimate son ; there v*
many of them whom i al^ cannot di»believe,
who giva a contrary testimony, and ssy thtl ba
was treated aa ao iilcgit nato' son ; anil cttW
I, Dr. Medltcoti Mtd colonel VV>1I gate
n accimnt ul'mj' lord's munoer orcatliag liini
M tiuMril lan. Anil in my ipiirelieiision, it'
bv wiiuctst^ draerve credit, my lord Attliacn
id duiin)^ ihat tiDiclreBl [lim to some penous
■ bii Uwfut (On, nnil lu olhera, us liU illeKili-
Mite son. Vuu will conwd«r iliu lem[>«r and
iapMitiou of lord Allliaiu, and the t'ircum-
bUGCi lie wu in ; he wbb a innn not of pru-
tnc I oillirr na lo the mouagemeDt of his for-
BBsar fiimily ; you will jileose to consider in
that Diaoner lu bccouuI lor ihis iMhaviour of
Ati trhetlier ih«re laay, or may doi tie any
'MMn ibr Ireatiag an illegitimale »on in souie
ptvqiuues a> a tegilioiate Eon, and whelbvr
kifc mmy tie, at any lime, any reason bt
[ill inn, * leci'inuite as an ill«|filiiuale one, A
BftB COmM into the country wliere he was not
H^HD bffurE, and has a child that he liBil
ebyhiawife; perhapa he may liaie reason
IwatiDg lum as a legitiroaio ton. A man
Bearrj an iiletfilimale child abroad, and
with him in (he ueii(bbourbood, and pass
ifm for hia Icttilimate child; for |ierbaj>s lie
■igbt be glnd mat that person nhooi he iisited,
llHHiU not know him tu be a bastard ; but a
BID can have no reason in my npprelieticion,
at tmtii^ a lawfnl sod as so unlawful ooe.
nMB you Tvill consider the several schools the
iUU was put to by lord Altham ; you will con-
Utx wltetliar these schools weie fit sctiools
br my lord, even iti indigent circuniitanoes,
Ift put bis ianfiil SOD lo. Vou will cooiidur
Ab GOn*«|uciwe of my lord's being under
nviDfiucDceodUiss Gregory ; ihe conseijueoce
Hi^ltial this uuliappy child was ihrown aban-
frr^ '"'*•" world at not ten years old: here
KUI will consider wbellier a trealmi?nt of that
nsil liuptaLs him to be his U-glilmale or ille-
ptinulc SOD : had he beeu a legitinmle aon,
■oraly my lord Althara must havu had refiec-
lloii enough to hare cousiilered what a disho-
Uunble action he waa doing publicly. On
Ow Other haud, you will couiider that the iu-
lotooeof Misis Oregory Diight well be catrird
la luako him doubt '\vhelhcr ihia child was
fail or uut. if the child was by ao improper wu-
maa. In tlie ucxl place you will consider the
riUalion and behaviour of the moibtr, Ibat is
^ tondrr sex, aud llieir teDdcrueas lu llirir
lUdrrn is burtlly to be got Ibe better of al any
nt«- l«d^ Aluiam was tliree years in Ross,
UhI ibwe IS but one teelimooy of her seeiug
tam tben, and Ibat ia ilie dmu thai swear* be
■■4c him alkoes. From this sbe comes to
^wliOt Old lives near my lord at the lime Ibis
ll^d is wilh bim ; it wetu* n htile odd thai
iba made no alleiupt lo hav« tliis child bruiigbl
rbw bul bv Catlierine O Neile ; and 1 submil
ttt ;iiu, hnw fat whal ahe says cau huTc
IMiffM ; fat ahe says, that tnj ludy declared
|(m would be ((lad losee the child, bul she was
ijinii ibe WMSUl thai brought him wuuld lose
nibiead. Can nucfa a tblug as ihat be put in
BOVfwtition with the lendrtness of a raolher fur
achdd? That, iicutiemcn, is for your coruidcra-
kWby llMii, ntttloMU, tuy lady cvioe*
.xm.
'.rd Earl of Aag/fsea. A. D. 17W- [M
tu Uie house of abterman bJng, and he tells yov,
that fur 13 or 11 mnntlio tba fteqiieiilly B[iok«
lo him of licr fuinily alTairs, yet ncrer meutioni
she had a child. It seems «ery strange ; a
wnmoo, where the lancies bersell' ii^jured, \i
micbly aiil to tell the injurin done her to every
livily, and to agn'^'Bt^ l'*^ disireu by anymg
the was d«priveil of ihe comtbri of seeing her
child. Tins was not to be cntnKted In alder-
man King,tnncuinniuntcatc(l tu Mrs. Hivtgera,
wbom she had neier s«en hot once i y*<l wilt
cMiBider this, geniltmeii. (n Ihe year 1737
my lord died, an<l Ibere can be no doubt but
my lady knew it ; Ihero is not any proof uf tier
having made any euquiry alter ibe child : it it
true, my Indv miehl h«ve made tlie eniguii'jr
an?r the etiild, and it ta'i^t bate proved m«t-
feclual, becauseof hit beingiraiisportedmsoon
aft«rj bulof this there is no evidence; bnlhuw
comes it she did aat make Ihe enquiry, etoe-
cially where her own iutereit waalo guide her
in that case ? And yet here is the force of tlie
mother and iateresi joined tOEether, and Ihey
WM-k nothing on my lad^ Alwam. Vou irill
consider thai the estate ot ihis family, on failure
of issue, being to go tu Arthur, late lord Angle-
sea, it WSJ the interest of tbe mnlbrr to have
made a strict emiuiry afW him ; sod yet iliera
ia a wilness for Ibe delendanl, Williain Napp«r,
who tells you, that he had a letter of alter -
ney from lard Aiigiet^ea to lake possession of
the Rubs estate ; and by virtue Ihvreiif made
numbers of minutes to sereral tenants, and u«
ohjeclion he ever heard made, thai loi d Althsm
ever had a son. That, gentlemen, seems a liltlo
OKlraordinary.
The next thing thai olTers, and the tlrenglli
of tbe case for the plaintilTis, Ihe Irons no rtation
of him, and the directions Ibe defendant gate
10 Mr. Giffird for the prosecution of bim after
Ills return hito England. You will lonsider, as
lo the transportaiion, wbelber the delisndant
was tbe occasion of it, or notf If you should
be of opinion \\e Mas, you will consider how far
lliat will hate an eHecl upon you. He claimed
to be the lawful son of lord Althsm ; you will
cnnaider wbeiher lliai might bate been an in-
ducement. If vou should he of opinion that
tbe story on eacn hand carries on ei|ual degree
of prohablKly ; this oTlhe trans portal ion should,
iu my apiwebeusion, Mid great weight lo the
case of ibe plaintifl' : If, on the other hand, you
sliould not think ihcm equally probable, you
will consider how far Ibe irons porta tion will
make you give crrdit tu a fact you ihould
otherwise think imyrvbable. The same may
be said in rM|iect of ihe atlvrnpl in Euglaud, in
relation to the pioseculiou of him there. I bare
mentioned before, thatieveral ufthe witnettes
on lioth sidrs caonol be verv wvll depeodeil
upon ; and thrrefure i ibmb the piohabiliiy or
iiaprobabiliiy of tbe thing may lie of ^real
treigbl in dctermioiug tbe present i|ue>tioo.
The.
Mr.Caldwell.atiomey fur the plaiutiir,
d 10 III* jury tliP issue wludi ihey were
Afterward* lite jury wiilidrew iuM tl»
I41J 1 17 GEORGE U. Trial in Ejectment belKcen J. Anne^eij, esq. [1114
jury- room, and in about two hours time they «• On hit father's ceasinpr to par for hiibosrd
brought in their verdict. at school, this youngs nohlemun bectn to ffH
Cluk of tht Pleas. Cryer, make procla- *'*' misfortunes. His clothes ffrew rsg^Mi sod
iQ2(iflu. '^ too httle for biin, his fsrc coarse and scsniy, do
Oyer. Hear ye hear ve &c recreations aliuired, nerir looked ufion bui vith
Clerk cf the FleL Gentlemen, which do ^r^'^l?' "^'' ^^?^^ *? ^^ V^^ reproaches, coo-
you find, tor the plaiDliflf or the defendant? linually reprimamled, oficn crnt-lly bettn,
Sir Thomas Taylor, Foreman. We find for ^^^^'^^ barely for not doing what none took
the plainUff, with 6rf. damages, and 6d, costs. ' I*!*" P"'°* *** instruct him in. While otiiers cf
Counsel for the Plaintiff: My lords, I pray *"* "^ "^^^^ «^ ^*'«''' •^''•*«* exercises, he
judgment un behalf of the plaiutifT, on reading
this verdict, and that it may l>e recorded.
Clerk of the Pleas reads the ferdict.
31r. Lee, of Counulfor the Defendant. My
lords, I hope your lordships will not now ^ve
judgment, for 1 humbly conceive the plaintifTs
declaration is bad, and that he can't have judg-
ment [and he offered some matter in law in ar-
rest ot the judgment]
Court. Gentlemen, we will adjourn to nine
o'clock to-morrow morning.
The Grycr accordingly adjourns the Court.
Saturday Morning.
Counsel for the Plaintiff. My lords, wc
pray judgment iu behalf ot the plaintiff on this
verdict.
Court . Take judgment.
Counsel for the Defendant. 1 pray tbilt
Writ of Error may be received.
Court. Allow the Writ of Error.
.\ Report of lliis Trial is inserted in vol. ll,
I'P '::>. 87. Ml. 'J06 2:)5. 316. 373. 431. 537.
y>[K of the (rcntlcmairs Ma<;aziiic ; and in vol.
J:*», |h». o:i. 'joi. i\06. CuQ. of the same work I
fiiul tlie i'oUuwiijg pariicuiurs relating to Mr.
AnnciJliy :
'' Trom the Memoiiis of an unfortl-
MTE YOL'N(; Nobleman rf.tukned
F;ROM \ TIIIRTEEN YeaRS SlaVERY IN
America, where he had been sent
BY THE wicKhi) Contrivances or his
••RILL L'sci:;,
'■ Tiic first 41' pajjes relate to the noble pa-
>cnTs of lliis ar.uidoned child, whose life, it
soeuiS, was an obstruct ton to 1 be grant of some
!( .'^sic'S, \f hich the extravagance of tlie baron bis
fi.il.er n:r.de necessary. He was therefore re-
niuvtv* from h pnl 'ic,*to a ver^ obscure school,
and letters were wilueu to corroborate a report
of his dentil, auil of that of the baroness, who
had been forced to rttire for subsistence,
10 the duke her fitber in another kingdom,
ill^c-r wbich, tbe ri'lation says, that the baron
her husband married a woman who happened,
amidst the variety he had tried^ to please and
^x him.
employed either in drawing water, cleaonff
knives, or some servile office. Thus lie conti-
nued for more than two yearf, when grawin;
more sensible of his ill usage, he begao to imn^
mur, but was told that he waa kept only on cbi-
rity, and if he liked not that way of life, k
miVht seek a better : the poor innoceDt, thisk-
ing he con Id not fare worse, without dotha,
mone^ , or the least hint given him where to
tiiid his father, turned bis back upoa tbtl wcem
of woe, trarelled without knowiDg where teia
till he came to a small Tillage. Hb tenser
limbs being ranch fatigued, Ibr be wit btf
turned of ten Tears old, he eat down at a ter
and wept bitterly for want of food ; m getoAdi
woman relieved him with some bread, meat vd
butter-milk, which enabled him to pnrsiie Ui
journey, till he arrived at the capital. Hoc
friendless and hungry he fell again into tMBi
which not availing him, he war obliged tokf,
and by his modest deportment obtained sonc
relief, and at niffht took op hia lodging ia t
church porch, fiext morning, recollectin|^ tlMI
his school -master talked of writing to his &•
tlier in this city, he went from one street to
another, enquiring for the harori. At length
was informed that his lordship had retired fron
town some time, none knew whither, oo le-
count of his debts. Our noble wanderer, dov
\y ithout hope, hunger pressing, and some char-
libh people threatening him with the honse of
correction for asking relief, he took to runDing
of errands, and procured a mean subsistancr,
after the manner of other poor boys, it bip-
nened one day, some boys fell upon him sn
oeat him severely, calling him dog and sooon-
drel, words he could less bear than the bloin;
he ansuored, They lied, — he was better tfaio
the best of them, — his father was a lord, lod
he should be a lord when a man. — Af\er thif
he was in derision called my lord, which the
mistress of a house hearing, called him, and
seeing he had no deformity to deserve the tidf,
as vulgarly given. Tell me, says she, wbv tb«r
call you my lord. Madam, replied he, I shall k
a lord when my father dies. Ay ! said she, vbo
is your father ? — The baron of A and my
moiher is the baroness of A , but she bit
\ei\ the kingdom, and they aay I shall nertf
see her again. — Who tells 3'ou all this?— I
know it very well, I lived in a great house oeee,
and had a footman, and then was carried lot
great school and was reckoned the brad b«r
there, and had the finest cloatha ; afterwards 1
was carried to another school, and there tbej
abuse<l me ndly, becaoee they aaid, my faihir
would not pay rar me.— Why do joo not gets
1443]
and Richard Earl ofAnglesea,
A. D. 17i3.
[UtG
y«iir father ?— I dooH know where to find him,
Miiwered the |K>or ioaocent, and burst into
tearfl.-— Do you think you should know him ?
>-- Yes, very well, tliough it is a great while
since 1 saw him, but 1 remember he used to
come in a coach and six to see me, when 1
lived at the forest sciKMl. Moved at this ac-
oount, hut willing to examine him more strict-
Ij, she said. You are a lying lioy, for that lord's
■OD is dead. He replied, Indeed i lell the
IruUi, I never was sick, but ouce when 1 had a
fiUI and cut my head, and here is the mark,
puttiog his hair aside, and my fath%r was very
angry with those who hud the care of niP.
Tnt woman, wlio kept, an eating-house, to
which his father, sometimes came, having
heard that his son and heir was dead, felt no
little surprize to see the child reduced to so
niserahle a condition. She knew enough of
tbn extravagance and necessities of the father,
nnd that certain leases on which money was
laiacd, could not be granted while this son was
rafalidy known to be alive : and not doubtuig
nis ioBOceot assertions, gave him not (inly food
but clothes, and promised to write to his father.
** In the mean time his uncle can)c to the
hmise, and the good woman tuhl him what she
had heard and done. IJe said, it was un im-
paction : for his nephew was deail : 1 mean
the boy that was called my brother's son ; for
though his lady had a child, he was not the
father. 1 can say nothing to such a distinc-
tian, replied tlie woman, but as he was born in
wedlock he must be the heir, and ought to be
eincateil in an agreeable manner.
" The uncle desired to see him, who, being
new clothed, and having beautiful hair, came
in with an cogging mien, and most respectful
behaTionr to his oenelactress, as well as to the
gentleman, as he appeared to' be of distinction,
who instead of bemg moved with com|>assk>n,
Memly cried out. What name is this you take
■poa vou?'— I take none upon roe, Sir, but
irhat I brought into the world with me, and
van always called by. Nobody will say but I
im the sou of the baron of A^— , By whom?
lemanded the gentleman. — By bis wife the
mroness of A , replied the other with more
enolution than oouki be expected. — Then you
kte a bastard, cried the uncle, for your mother
ran a . If I was a man, you should not use
ny mother or me thus, whoever you are, said
he cbihl with tears m his eyes^ which moved
be woman of the house to intercede for milder
reaUnent.
•« The child said at last he knew the gentle -
oan was his uncle, for he came once with his
ether to see him at school, but the go(M| uncle
epiieil, he knew nothing of it, and \irnt out of
be room, the woman followed, ami entreated
lim to consider his nephew, and not reiiisr him
i proper education. He promis«;d to spc.ik to
lia brotlier, but desired her to keep the atiuir
irivate. He was indeed as good as his^i^oni,
ofbrmed his lirother of the condition his m^phcw
(ran in, but observed further, that aitl)oii(;li
leme care should be taken of bis cuucatiou. it
wonkl be of ill consequence, on account of the
leases, were he known to be alive, befure the
baron's decease. He therefore advised Hr.
Omers, or some place beyond soa, where he
might be traineil np at a small expencc. The
baron readily approved this advice, and gave
his brother monf>y to reimburse the woman,
and for further exigences. The uncle took the
conduct of I he whole aflfair upon himself. The
iirst step he made wan to agree with the master
of a ship bound for Pcnsylvania, tor a sum of
money paid down to transport a boy thither,
and sell iiim to the fairest bidder. To palliaiv
the villainy he told tlu^ o:iptain, the hoy was
the natural son of a person of cundittun, but
had vilely l>ehaved, and as he deserved no re -
gard on that score, his frientls were loth to
suffer disgrace by him, therefure chose to send
him out of the way of temptation. I'hen tie
returns to the wonian, tells her the boy was to
embark forthwith for St. Omers, and takes him
away with him : mean time the vessel not
being ready to sail, he lodges him in a private
house, at his devotion, where the boy w^s kept
concealed till things were ready for his em*
barkation. Soon after the bamn was taken ill
and died. The worthy uncte immeilintely took
upon him the title of baron, Hitli the estate ap-
ptndant on it : the baron's sudden death is
supposed to l>e the cause why he made no de-
claration in behalf of his son, on his dcath*bed.
Meanwhile the unhappy youth, now real baron,
was kept too close a prisoner to hear one word
about it. Being told by his uncle that nothing
should Ije wanting to retrieve the time he had
lost, the ho|>eK of future accomplishments gave
him new life, he went on board the ship, and
was easy and gay, tdl a storm arising, ruiflcil
the pleasing prospect and filled his head with
all the usual terrors that attend it.
** The fears of death no doubt had such an ef-
fect on our young voyager, that though ig-
norant as yet of his misfortunes, he heartily
wished himself on land. Alas, he little ima-
gined the severity of his fate was yet to come !
** The violence of the storm, which had lasteil
three hours, being abated, a ckith was spread
in the captain's caldiin, our young baron was
going to place himself at the table, when ona
of the sailors checked him with — " Hold,
youngster, do you think you are to be mesv
mate uith the captain?" This sea jt^st, se-
conded by the loud mirth of two cabbiu boys
who attended, a little disconcerted our un-
happy young nobleman. The captain saved
him the trouble of a reply by saying : ** The
boy will not chuse the worst company 1 find,
were he left to himself, but he \u\{ know
his distance belter hereafter ;" This sarcasm
phmged him intd a silent confuVion, during;
which he had the mortiticutitm to see the ca[*-
tain dine elegantU ; ofurr which he had his al-
lowance of salt beef and pease, given him in sa
coarse a manner, asmi;:ht have ac(|uaiiiied i:iui
what he had to apprehend. lie iM-gau to
mutter, tiiat he thou£;ht hliiiselt' ill used, nnl
would acquaint the Luicu his fuiiiei Mitb )*,-,
1447] 17 GEORGE II. Trial m E/edmeni himeen J. Annesley, esq. [144S
which naturally ndmnz the curiosity of the
•ailors, the captain in his own vinilicatioo re*
lated the story as be had it from the kind uncle,
by which the young baron beings fully apprised
of his cruel destiny, it produced so nsibie a
despair, that the captain thongrht himself obliged
to con6ne him to the hold. But he mistook
the remedy ; the vonngstcr's generous spirit
was not to be tamed by ill usage. A disdainful
sullenness succceiled : he obstinately refused ail
sustenance though ^iressed to receive it by
beating, or swallow it by force. Arguments,
menaces, and stripes were equally vain. The
captain saw a necessity of changing his me-
thod, for liis oivn interest. He sent for him
into hiscabbin, apologiEeU for the ill treatment
lie had receiveil, as done without his warrant
or privity, and assured him, when they reached
tbe Inchan continent, he would employ his
good ofiBces to place him to his liking, with
other arguments to reconcile him to his cap-
tivity. But all that was urged had no effect
on the young baron, till promised his case
should be represented to his (Hther. This as-
surance reconciled him to life, and the captain
using him kindly, to fit him for the market he
designed, our young exile landed well in
Pennsylvania.
'* Here the captain repeating his former as-
surances, he was sold to a rich planter in New-
castle county, called Drummond, who imme-
diately took him home, and entered him in the
numlier of his slaves.
" A new world now opened to him, and being
set to the felling of timber, a work no way pro-
portioned to' his strength, hediditsoaukwardly,
that he was severely corrected. Drummond was
a hard inexorable master who, like too many of
the planter, consiiier their slaves or servants
as a diflfercut species and use them accordingly.
Our American planters are not famous for hu-
manity, being often persons of no e<lucatiun,
and having been formerly slaves themselves,
they revenge the ill usage they received, on
those u ho tall irilQ their hands. The condition
of KnrG|iean servants in that climate is very
wrcichetl, their work is hard, and fur the most
part abrn:i(I, ex[>o^e(l to an unwholesome air,
their diet coarse, being either Poul or bread
made of In-.lian corn, or hominc or mush,
which is meul of the same kind moistened with
the fat of bacon ;^and their drink, water
sweetened with a little ginger and molasses.
Our young captive began to sink under his ca-
lamity, when he met with a comfortress in a
female slave of near sixty, who had been per-
fidiously trepanned hy a wicked husband, and
sold 10 Pennsylvania. As she dressed the fond
for the slaves and carried it out to the field to
tbeni, she soon took notice of him, and her pity
increased on hearing a story that so nearly re-
sembled her own. 8he had a good education
and uas not unacquainted %iith history, so that
her c<in«ersaiiou utfonled the young baron
hotii consolation anil instructiiui. She some
timrs wrote short pieces of instructive history,
on bits of pa[K!r which bhe left with him in the
field, and to look over Acw he oftea eggkclni
hit laboar, regardlesi of tbe Mown, he knew k
waa to sailer, so eager he wee to iaiprove kii
mind. HeregatdeB this sieve ethisaNdNr,
and was treated by her es m fevonrite chiU, Wl
in four yeers she' died, end left him m Ik
deepest efllictioo for her lose. His nnsM
continued ill usage, end the innete evcniae k
had to slavery, at last determined him tt »
deavour to make his escape. Yet he ke|A lUi
resolution to himself, having little inclmatiBiti
converse with his fellow slaves, whoee mman
were no way conformable to hie own. Hsv>
ever one of them who entertained tbe same 4t>
sign, observing his melancholT, broke hit »
tention to him, and inforaied him tliet hesnf
e ship was ready to sail iVom Dover (a aosk-
bouring port) to Eufflend, he reeolved la ikt
that opportunity and invited him to peilake Ui
flight. The yonng baron, after aome ^amf^mit
agreed to tbe proposal, end went early to U,m
onicr by day-oreak to put their prcgeet ie en-
cution. But what was his sarprke on awA-
ing, contrary to custom, to find the day a^
vanced, and the family in confusion. Ik
other slave, Jacob, had robbed hia mutnmi
fled with the booty. Messengers were dii-
patched in pursuit of him every way. Hoe ii
the young Mron bless hk good fortune, thukl
saved him from such a danger, as being asB-
nocent accomplice in Jacob's villainy ! IlesliB^
dered at tlie guilt he might have eontraded \j
partaking his flight. Jacob had not goee tf
miles when he was retaken with his niasler*i
effects, and brought back to receive the pnaiib-
ment he deserved, after which Dramroood mU
him to a planter at Philadelphia, as fearing k
might take his revenge for what he had sof-
fercd.
** The young baron was now seventeen, ni
had passed five years of the servitude, for
which he was sold, when weary of the scver^
of his condition, in a sullen tit of despair he left
the house of Drummond, resolved to safer
death, rather than be brought back. Thai
armed with a hedging bill, he set out withoot
knowing his course, and as he was active ni
nimble, had got some miles before he wsi
missed. Immediate pursuit was made after
him, but to no purpose. Three days be wia-
dered in the woods, and having but little nno-
rishmeut, grew faint, when he spied a rir«r
which be took for the Delawar, but was iodeed
IheSasquahana, which partsPennsylvaniarrom
the Iroquois nations. He also saw a town at
some distance, but not caring to venture neu
the shore, he lay down at the foot of a tree,
when fortune bronght him a present rthef te
plunge him in new distresses.
** it was now twilight, when he heard tk
trampling of horses on ftitl gallop, adTanoin^
towards him, and lifting up his eyes from hii
covert, (lerceived two men well mminted ; oM
of whom had a woman behind and the other s
portmanteau. As tliese did nut seem to be par^
suers, his courage re vi veil ou hearing tiK* tore*
most say to the woman behind him, " Csa^
1440]
nnd Rkkard EaH ofAiigktea.
A. D. 1743.
[1450
By dear, it ii time to take some refresh ment,
■ml thii is a coiiFenicnt place.'* With that he
ftlightetl, helped her off, and hit atteiidaDt Ims-
ImiDg the horse to a tree, took aome meat out
of one of his bags, and spread it on the grass,
irith a bottle of wine, and they all sat down to
Ihe refreshment, whioh our young- baron wonld
•rillinf^y have partook, if he durst. Howe? er,
in peeping at them, he made a noise, that
■lu-med the servant, who starting up saw him,
and cried to his master they were betrayed, at
the same time striking at him with his drawn
cntluB. He kneeling protested his innocence,
and aner repeating his story prevailed on the
Bwsler to pity hi^ misfortunes. They now in-
▼Red him to share their repast, which he
IhankfuUy accepted, al^erwhicli they told him
they were going to Apoquenimink to embark
lor Holland, and would procure him a passage
with them. This happy news made him forgfet
■11 he bad suffered, and gave him new spirits
fbr his Journey. They remounted, and he
Ibllowed on foot ; hut tney had not gone far
through the woods, when they saw by the
horses and lights behind them, they were pur-
•oed. The lady gave all the signs of the ut-
BMtt consternation. "It is he, it is hehim-
■elf, she cried, we are lost for ever." The ap-
■ffoach of the pursuers gave no time for deli-
Deration. The lady jumped off, and hid her-
self amongst the trees. The gentleman and
hU servant drew, and the baron with his
hedge bill, in gratitude thought himself bound
to assist the weakest side, but the combat
«■■ oneqnal, and they were surrounded and
taken prisoners. The lady, who had fainted,
vnderwent the same fate, and in this manner
tfa^ were conducteil that night to a village,
and the next day lodged separately in Chester
gaol.
" It was here, too late, the young baron was
hilbrmed thai the lady was the daughter of a
rich merchant, who having an inclination for a
Emng man beneath her rank, was by her
ther forced to marry against her will; but
still keeping company with her first lover, (the
person taken with her) they agreed to rob her
nusband and leave the country, who having
timely notice, had pursued them, and there w^s
no doubt but they would suffer the rigour of
the law.
" The noble slave trembled at this relation,
be aaw the hazanl of associating himself with
itraDgers, and yet in the circumstances he
Was in he knew not how to avoid it.
" The trial came on next mominfr. The
lady, her lover, nnd servant, were rundemned
to die for lobhery. The sentence of the young
barttn ^vas resipited, as he did not bclons^ to the
^lilty personji, but he was remanded to prison,
iritii orders that he sliotild be expoi^ed every
lay in the market-place to public vie«v, ami
tf It conld be proved, that he had ever been at
UhrMer before, he should lie deemed accessary
lo the robliery and suffer death.
** In this siispence lie rpmainrd 5 weeks.
ivhen some affairs of trafiic brooi^lit Druin-
mond, his old master, to Chester, who im-
mediately reclaimed him as his property. Be-
fore his departure, our young baron was a me-
lancholjr spectator of the execution of the
three criminals, taken with him.
'* The fnrit the young baron received from
this attempt, was (by the laws of that country)
to 6nd the remaining two years of his servitude
redoubled, and the severity of his master pro*
portionablv increased. However u|>on a com-
plaint matte to the justices of that province, at-
tended with proofs of his ill usage, his master
was obliged to sell him to another; but he
gained little by this alteration in his condition.
He bore it notwithstanding for three years with
tolerable ]iatienoe, but conversing with some
sailors, who were returning to Europe, it awa-
kened all his ardour for liberty, and he resolved
at any rate to venture a second escape. His
design proved again abortive ; he was re-taken
before he could get aboard, and though he had
but one year to serve, he was condemned to suf-
fer for five. Tliis last disappointment and ad-
ditional bondage quite suni his spirits. He
fell into a deep melancholy, which appeared in
all his deportment ; so that his new master ap-
tirehending he might lose him, began to treat
lim with less austerity, and retommended him
to the care of his wife, wlio being a woman of
humanity, often took him into the house, and
gave him part of such provision as they had
at their own table, or in his absence ordered
her daughter (who was called Maria) to per-
form the same kind offices. This young girl
soon conceived a great tenderness lor the young
baron,^and endeavoured all the ways she possi-
bly could to relieve his sadness, which was
such as gave him no ro<im to take notice of
what otherwise he must have observed. It
happened she was not the only one on whom
the graceful person of our noble slave had
maile an impression ; a young Indian maid of
the Irokese nation, had distinguished him from
his fellow slaves, and as she made no itpcret of
her affection, used to express her kindness for
him, by assisting him in his daily toils, telling
him, it he woulil marry her when his time of
servitude was expired, she would work so hard
for him, as to save him the expence of two
slaves. The young baron used all the argu-
ments he roufd, to persuade her to stifle a pas-
sion 10 which she could hope no returns, it
was on one of these occasionn, that Aluria, his
master's daughter, surprised him sitting \uth
this Indian maid, and jealousy awakening htr
love, she loaded him with reproaches, and left
him without allowing him to make a reply.
** Thus did our young baron in his caplivit\
find himself the object of a pasidon, he hud no
taste or inclination for himself, and studied a«
much to shun the caresses of his two niiMre^scs,
as others would have done to return them,
l-nhirkily Maria's impatif ncc to sec him, car-
ried her one day to a field distant fi-oni the
plantation, wlirrc she knew he worked. In her
way thiilier, >lie met her riial, hml on the
same desij^n. Tiie Inilinn. no Um'^fr mistress
1451] 17 GEORC£ II. Trial in Ejcdmtnt behoeen J. Annedet^, esq. [Uat\
•f lieneirflew at hM* like a iygnu^ so tbal it
wai pot without some strugi^ie she got out of
Ler fuUMl** ^^^ fl^ towards the place where the
noble kjnf e was employed. The Irokese find-
ing h^ revenge disappointed, and perhaps
<l reading the consequences of the other's power
and resentment for the assault, made directly
to a river ailjacent, and plunging herself in,
eodeit at once her lovo and her life.
" Maria, who saw this catastrophe, was
Itfought home to the house pale and speech-
less; she was put immediately to bed, and
when she recovered, all she could say was to
repeat the name of the Indian maid with great
emotion. This, joined to the account of some
slaves, who had seen all that passed between
tliem, and who were witnesses to the Indiau's
late, greatly alarmed her father and mother.
James only (the noble slave) ^nM^ssed the real
truth of tiie matter ; and as Maria of^ men-
tioned his name, it was concluded by her
parents to send him> into her room under some
pretence or other, and place themselves so as
to liear what passed. This stratagem had the
desired success. They heard their dan^rhter
express the roost violent passion, whii:h they
found was no way encouraged by their slave.
As they could not but entertain a just opinion
of his honesty and prudence, they resolved to
take no notice of what passed ; but in order to
<*ure their daughter of her passion, it was con>
eluded to give our young baron the liberty his
late behaviour deserved. The mistress soon
acquainted him with this good fortune, and he
liow indulged the pleasing hopes of returning
to Europe, and hems restored to his honour
and fortune. He looked on himself as already
free, when his master gave him notice he was
to £jo with him next day to Dover : but his
inastcr, havinnr secretly less favourable inten-
tions, as he was very covetous, bpgan to re-
flect, that five years the younof baron had to
serve was too much to lose ; and though to his
wife he pretended his intention to set him free,
he secretly agreed with a planter near Chiches-
ter in Sussex county, where with the usual
forms he transferred, or sold him for the term
he had to serve.
*« Never was astonishment equal to that of the
noble slave at finding the baseness and ingra-
titude of Druminond. He reproached him
with his breach of promise ; and had not those
present interpose<l, he had probably made him
pay dear for his perfidy. His new master
iniai;:ining by this conduct, that he was of a tur-
bulent disposition, l»egan to repent his bargain :
However, as he was a (fenerous ^ood-natured
man. he treated him mildly ; so that his work
was easy, and he had the privilej^e of a good
collection of books, which was a great consola-
tion t(» hiiu. This kind usage had such an ef-
fect on Ins jjtcnerous temper, that he i-esolved
patienilv lo wait the recovery of his lilierty ;
but unluckily his master died in three years,
and the lieir'di<po»ing of jmrt of the plantation,
he was 9M to a new master in \e\vcastle
oouury, almost within sight of Drummond*8
Elantatioa. Here be was informeil that Xim,
is okl mistress, having had a child by uoeif
ber father's white slaves, he was by the Usitf
the couBlry obliged to marry her ; ami thej
were gone to settle at a distant plaotatios, miuk
her father had bought for him ; and wIiumk
nearly concerned him, he was tohl, that tn
brothers of Turquoise, the Indiau maid, (whw
«lespair for him had occasioned her tiagiol
death) had vowed his deMiuction. As liekaev
the desperate and revengeful tem^Krr ol'iim
nation, be was as much on his guard as |MK^iliir,
but all his precaution had been fruitlet»s, it Pro-
vi(k»nce had not interposed in his hxwu
These Indians watched him so narrowly, ilat
they attackeil him one day in the remote piir
of the woods, and with a knife had cert^inij
dispatched him, had not some persons, iuMsrd
of a fugitive slave, at that instant caroe oy
and seized the assassins, lie escaped witbi
slight wound in his hip, and the Indians bnof
carried before a justice were sentenced to pay
the surgeon for his cure, and the master for tM
loss of time it would take op, and to Ipres^
curity for their good bchaviuur. He ew-
tinned two mouths ill of this wound, lodiK-
ther the surgeon nor master hastened theico^
very, which was against both their i&terem
During this indisposition a new acciueat is-
volved him in fresh difficulties.
<* Going out one Sunday evening for dii
Ifcnefit of the air, he sat him down under a
hedge, which partetl bis master ^s ground froo
that of a neighbouring planter ; after he had
read here a while, he found hiui!»eif ilr>>ssy
and fell asleep ; and when he awoke he |xr-
ceived it was dark, and heard near him ihs
voices of two persons, whicii laiseil Ih< cu-
riosity. His surprise increased to tinJ t>y i:^
conversation, that his mistress was fiirn::i.ja
plot with Stephano their nei^libour's sl;i^-..:.^
rob her husband and go oft* with him tor L.-
rope in a ship, he had prepared for that }>::•
poi^e. The noble youth was struck with hv:n:
at the discovery ; for the perlidious umiu:. .r.
outwanl appearance seemed to live «ory l:/,>-
pily with her husband, who was tuud oi iitr iu
excess. He resolved to prevent the %i!biiy,
at first by revealing the whole to his uiacic-;
but reflecting, that a woman capaldt^ ut' sucn
treachery, miifht have art enou>;h lo luakc x
good natured husband believe her innoccbt. I.e
resolved to try another method. He waUil
till the guilty pair separated, and following ! .i
mistress, hastily over-took her, auvl told lit.- U
was informed of all that passed. He rcir.o:i'
sti-ated to her the baseness o| her iK&>£m !
flight, and ended with conjuiin;r her to ri riict.
and chan-ie her purpose ; in whieli cusc lie .i>*
surcd her, what had passed should rLiiuiu wiiii
him for ever secret.
•*The mistress, finding herself disc •! ore.',
pn>teiided a sincere repentance fur lur t mil.
which she promispil him she w onld never rv. {Cit:
adding such marks of kindness to him. u^ i.rsve
him too much cause to imagine, her unlannd
passion had changed its object.
IS]
and Richard Earl nfAn^etea.
A. p. 1743.
[1454
^ Ai the young; b&ron coold not prersil with
■Mif to g^ratify the passion of his mistress,
jjiat last coDsifiered him ts a dangerous per-
il» and endeavoured to get rid of him by
which, though his serritude was a
expired, determined him to make his
He luckily met with a ship that
Might him to Jamaica, and in September
W, he entered on board one of the ships of war
• common sailor ; but tt discorery being
^ made of his birth, and several circom-
toces of his story remembered by some in the
set. he was introduced to the captain, who
iewed him particular regard, and the admiral,
amniserating his mistbrtanes, not only ae-
rified of a petition for bis discharge, bat soon
mt biro to England to prosecote his claim,
^ben be arrived^ he applied himself to a gen-
aaum who had been an agent for the family,
•iit was not bng before he had an opporta-
Sr of gifing a strong proof of the justice of
eause.
** The woman who had nursed this unfortu-
lle young nobleman three years, hearing of
b arrif al, and being desirous to see him, was
indoced to another gentleman, when she
Mf ** You are not my boy, you are a cheat."
Illffwards she was brought into a room, in
Meh were five or six ^ntlemen at a table,
id one at a window looking out of it, and afler
Mog the former, said, *< My boy is not
rr, except be be at the window," then seeing
hetf she immediately cried out io great
raptare, This is be, and kissed him. Bat being
asked to give a particular circanataiice wbMA
might convince others that she was not de-
ceived, she answered, that he had a scar on hk
thigfh ; for having in his father's house seen
two gentlemen Teaming to fence, the foib
being carried away, he and his young play*
felk>w got two swords, and went to fencing,
by which be received a deep woand in the
thigh. Upon examination, the scar of it was
very visible."
The reader may perceive some confusion in
the preceding Narrative ; what degreeof anthen-
ticity it posstises I pretend not Co determine.
James Annesley, esq. died January 5, 1760.
He was twice married ; first, to a daughter of
Mr. Chester, at Suinea-Bridflre m ifiddlesez }
bv whom he had one son and two daoghtcrs;
The son, James Annesley, esq. died November
1763, S. P. and the eldest daughter » married
to Charles Wheeler, esq. son of the late captain
Wbeeler in the Guinea trade: secondly, to m
daughter of sir Thomas J' Anson of Boonda,
near Tnnbridge, in Kent, gentleman-porter of
the Tower, by whom he biul a daughter and m
son, who are both dead ; the son, aged about
seven years, died about the beginning of 1764;
and the daughter, aged about twelve, died in
May 1765. Former Edition,
£ND OF VOL. XVII.
TSS±
Prialsd by T. C HaoMid, Pel8irbQioo|li-Coort,
3 bios DID 3ftt 5t3
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